United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge
April 15, 2016, this court issued an order reversing the
decision of the Commissioner and remanding the case for
further hearing (Doc. 18). On July 26, 2016, this court
approved an order for EAJA fees under the EAJA in the amount
of $4, 234.58 (Doc. 22).
February 3, 2017, plaintiff received a notice of
decision-fully favorable from the defendant (Doc. 23-3), and
a notice of award on June 13, 2017 (Doc. 23-4). Plaintiff
then filed a motion for attorney fees under 42 U.S.C. §
406(b) (Doc. 23). Defendant filed a response to the motion
indicating that they have no objection to the motion (Doc.
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 her attorney entered into a contingent fee agreement
whereby plaintiff agreed to pay her attorney 25% of her past
due benefits if she received an award of benefits (Doc.
23-5). Plaintiff received an award of past due benefits.
Defendant withheld $17, 814.00 from past due benefits to pay
plaintiff's counsel (Doc. 23-4 at 4). Plaintiff's
counsel spent 17.25 hours representing plaintiff in the
district court action, and plaintiff's law clerk spent 13
hours representing plaintiff in the district court action
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).
noted above, plaintiff's counsel spent 17.25 hours, and
plaintiff's law clerk spent 13 hours representing
plaintiff in the district court action (Doc. 23-6). Although
$17, 814.00 was withheld for attorney fees (25% of past due
benefits), plaintiff only seeks $11, 000.00 in attorney fees
in this case.
case of Siraco v. Astrue, 806 F.Supp.2d 272, 274 (D.
Me. 2011), plaintiff's counsel sought 406(b) attorney
fees of $11, 366.62 for 30.15 hours, of which 4.7 hours were
performed by an attorney and 25.45 hours were performed by
paralegal work. As that court noted, Gisbrecht
requires that within the 25% limit, the attorney must show
that the fee sought is reasonable for the services rendered.
Id. The Commissioner argued that too much was being
requested for the paralegal's work. Id. at 277.
The court noted that some lawyers do all their own research;
some outsource; some use paralegals; some use law clerks,
legal assistants, or interns. The court stated that it is not
the purpose of a fee award to encourage or discourage one or
another of these. Thus, the court reasoned, if a law firm is
able to educate a paralegal to do some of the work that other
firms assign to lawyers, that ability should not compel it to
reduce its contingent fee. Id. at 278. The court
indicated that the issue is whether contingent fee agreement
yielded a reasonable fee amount in this case. Id. at
278-279. The court granted the attorney fee request.
Id. at 280.
case of Howell v. Colvin, 2014 WLL 317798 (W.D.
Okla. Jan. 28, 2014), plaintiff requested a 406(b) fee of
$18, 242.75 for 30.6 hours of attorney time and 11.2 hours of
paralegal time. The court noted that the Commissioner offered
no authority for excluding paralegal time, and cited to the
Siraco case for the proposition that the proper
issue is not whether paralegal time is compensable but
whether the percentage contingent fee agreement yields a
reasonable fee amount. The court found that the fee request
was reasonable. See also Dixon v. Colvin,
2016 WL 55275 at *2 (D. S.C. Jan. 5, 2016)(court, citing to
Siraco, approved 406(b) request for 8.75 hours spent
by attorneys and 19.75 hours done by paralegals, also
indicating that the issue is not whether paralegal time is
compensable, but whether the overall award yields a
reasonable fee amount; i.e., is it reasonable in light of the
amount of work put forth by plaintiff's counsel and the
outcome of the case); Atwood v. Commissioner of Social
Security; 2011 WL 6372790 at *2 (D. Oregon, Dec. 19,
2011)(adopting rationale in Siraco).
attorney and law clerk spent 30.25 hours on this case at the
district court level. The request thus represents an
effective hourly rate of $363.64 ($11, 000 ÷ 30.25).
The requested hourly rate is within the range of hourly fees
approved in the above cases, and is reasonable in light of
the amount of work put forth by plaintiff's counsel and
law clerk and the outcome of plaintiff's case, which
resulted in a fully favorable decision and an award of past
due benefits of $71, 256.00. The court therefore finds that a
§ 406(b) fee of $11, 000.00, which represents an hourly
fee of $363.64 (for 30.25 hours) is a reasonable fee in this
THEREFORE ORDERED that the motion by plaintiff's attorney
for an award of attorney fees under 42 U.S.C. § 406(b)
(Doc. 23) is granted. Plaintiff's attorney is entitled to
$11, 000.00 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 $3, 528.19, which she received as fees under the
EAJA, after plaintiff's attorney receives ...