United States District Court, D. Kansas
CHARLES R. PENNINGER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge
23, 2013, this court issued an order reversing the decision
of the Commissioner and remanding the case for further
hearing (Doc. 15). On November 6, 2013, an amended order was
filed approving an order for attorney fees under the EAJA in
the amount of $6, 623.83 (Doc. 24). After again being denied
benefits, plaintiff again sought judicial review, and on
September 14, 2015, the court issued an order reversing the
decision of the Commissioner and remanding the case for
further hearing (Case No. 14-2582-JWL; Doc. 18). On October
27, 2015, the court approved an order for attorney fees under
the EAJA in the amount of $4, 500.00 (Case No. 14-2582-JWL;
February 6, 2017, defendant issued a notice of award to the
plaintiff. Plaintiff was awarded disability benefits
beginning October 2007 (Doc. 25-2). Plaintiff filed a motion
for attorney fees under 42 U.S.C. § 406(b) (Doc. 25-26).
Defendant has no objection to an award of attorney fees in
the amount requested (Doc. 27).
206(b) of the Social Security Act (“SSA”), 42
U.S.C. § 406(b), provides that “[w]henever a court
renders a judgment favorable to a claimant ... the court may
determine and allow as part of its judgment a reasonable
[attorney] fee ... not in excess of 25 percent of the past
due benefits.” This provision allows the Court to award
attorney fees in conjunction with a remand for further
proceedings where plaintiff ultimately recovers past due
benefits. Wrenn ex rel. Wrenn v. Astrue, 525 F.3d
931, 933 (10th Cir. 2008). Where plaintiff has agreed to a
contingency fee arrangement, the Court must review the
agreement as an independent check to assure that it yields a
reasonable result in the particular case. Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002).
and his attorney entered into a contingent fee agreement
whereby plaintiff agreed to pay his attorney 25% of his
retroactive disability benefits if he received an award of
disability benefits (Doc. 25). Plaintiff received an award
for past due benefits of $83, 911. Plaintiff's counsel
seeks attorney fees of $20, 977.75. Counsel spent 63.9 hours
representing plaintiff in the district court actions. The fee
request thus represents an effective hourly rate of $328.29
case of Grace v. Colvin, 2015 WL 7102292 at *1-2,
Case No. 12-1017-JWL (D. Kan. Nov. 13, 2015), the
Commissioner had withheld $28, 077.65 (25% of the past-due
benefits) from her award to plaintiff, to be applied to
payment of that fee. Counsel's agreement with plaintiff
was for 25% of past-due benefits. However, counsel only
requested a fee of $17, 000.00 for 39.35 hours of work. This
represented an hourly rate of $432.02. The court found that
the attorney fee of $17, 000.00 was reasonable in the
circumstances of that case.
case of Russell v. Astrue, 509 F.3d 695, 696-697
(10th Cir. Jan. 31, 2013), the court found that an
hourly rate of $422.92 was not beyond the bounds of
reasonable judgment or permissible choice (this represented a
reduction from an effective hourly rate of $611 requested by
counsel). In the case of Brown v. Colvin, Case No.
12-1456-SAC (D. Kan. Sept. 20, 2016), the court found that an
hourly fee of $307.64 was reasonable. In the case of
Glaze v. Colvin, Case No. 13-2129-SAC (D. Kan. July
15, 2015, Doc. 23), the court found that an hourly fee of
$293.00 was reasonable. In the case of Sharp v.
Colvin, Case No. 09-1405-SAC (D. Kan. Jan. 13, 2015),
the court found that an hourly rate of $258.63 was
reasonable. In the case of Bryant v. Colvin, Case
No. 12-4059-SAC (D. Kan. Dec. 23, 2014), the court found that
an hourly rate of $418.28 was reasonable. In the case of
Roland v. Colvin, Case No. 12-2257-SAC (D. Kan. Dec.
23, 2014), the court found that an hourly rate of $346.28 was
reasonable. In the case of Wulf v. Astrue, Case No.
09-1348-SAC (D. Kan. May 30, 2012, Doc. 23), the court found
that an hourly fee of $321.01 was reasonable. In the case of
Vaughn v. Astrue, Case No. 06-2213-KHV, 2008 WL
4307870 at *2 (D. Kan. Sept. 19, 2008), the court found that
$344.73 was a reasonable hourly fee. In Smith v.
Astrue, Case No. 04-2197-CM, 2008 WL 833490 at *3 (D.
Kan. March 26, 2008), the court approved an hourly fee of
$389.61. In summary, hourly fees ranging from $258.63 to
$432.02 have been approved in the cases cited above. See
Robbins v. Barnhart, Case No. 04-1174-MLB, 2007 WL
675654 at *2 (D. Kan. Feb. 28, 2007)(In his brief, the
Commissioner noted that, in interpreting Gisbrecht,
courts have found reasonable fee amounts ranging from $338.29
to $606.79 per hour).
requested hourly rate by counsel is within the range of the
hourly fees approved in the above cases. The court therefore
finds that a § 406(b) fee of $20, 977.75, which
represents an hourly fee of $328.29 (for 63.9 hours) is a
reasonable fee in this case.
THEREFORE ORDERED that the motion by plaintiff's attorney
for an award of attorney fees under 42 U.S.C. § 406(b)
(Doc. 25) is granted. Plaintiff's attorney is entitled to
$20, 977.75 in fees under 42 U.S.C. § 406(b). The
Commissioner shall pay the fees from the amount she is
withholding from plaintiff's past due benefits.
FURTHER ORDERED that plaintiff's counsel shall refund to
plaintiff $11, 123.83, which he received as fees under the
EAJA, after plaintiff's attorney receives his $20, 977.75
in attorney fees from the Commissioner.
 On January 20, 2017, Nancy A.
Berryhill replaced Carolyn W. Colvin as Acting Commissioner
of Social Security.
 Plaintiff mistakenly indicated in his
brief that the EAJA award in Case No. 12-2302 was $6, 723.83
(Doc. 25 at 2). However, the EAJA award in that case was ...