United States District Court, D. Kansas
TODD A. FOX, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. LUNGSTRUM UNITED STATES DISTRICT JUDGE.
matter is before the court on a motion for approval of an
attorney fee (Doc. 28) pursuant to the Social Security Act,
42 U.S.C. § 406(b). The Acting Commissioner of the
Social Security Administration (hereinafter Commissioner)
does not object to award of the fee requested. The court
GRANTS Plaintiff's motion, approving a fee in the amount
of $15, 230.75 pursuant to the Social Security Act.
Social Security Act provides for the payment of an attorney
fee out of the past due benefits awarded to a beneficiary. 42
U.S.C. § 406(b). The court has discretion to approve
such a fee. McGraw v. Barnhart, 450 F.3d 493, 497-98
(10th Cir. 2006). However the court has an affirmative duty
to allow only so much of the fee as is reasonable.
Gisbrecht v. Barnhart, 535 U.S. 789, 807-808 (2002);
McGraw, 450 F.3d at 498; 42 U.S.C. §
(1)(A) Whenever a court renders a judgment favorable to a
claimant under this subchapter who was represented before the
court by an attorney, the court may determine and allow as
part of its judgment a reasonable fee for such
representation, not in excess of 25 percent of the
total of the past-due benefits to which the claimant is
entitled by reason of such judgment, and the Commissioner of
Social Security may, . . . certify the amount of such fee for
payment to such attorney out of, and not in addition to, the
amount of such past-due benefits.
42 U.S.C. § 406(b)(1)(A) (emphasis added).
Supreme Court, in Gisbrect determined that a
contingency fee agreement within the twenty-five percent
ceiling is allowed by § 406(b) of the Act, and that
courts may not use the “lodestar” method to
establish a reasonable fee. Where there is a contingency-fee
agreement between plaintiff and her attorney, the court is to
look first to the agreement and then test the agreement for
reasonableness. Gisbrecht, 535 U.S. at 807-08. In
determining reasonableness, the Court suggested that courts
should consider such factors as the character of
representation, the results achieved, whether the attorney is
responsible for any delay, and whether the benefits are large
in comparison to the amount of time counsel spent on the
case. Id. 535 U.S. at 808. The Court noted that the
comparison of amount of benefits to time spent might be aided
by submission of plaintiff's attorney's billing
record and normal hourly billing rate. Id.
provides that when attorney fees are awarded under the Equal
Access to Justice Act (28 U.S.C. § 2412(d)) (EAJA) and
under § 206(b) of the Social Security Act (42. U.S.C.
§ 406(b)) for the same work, “the claimant's
attorney refunds to the claimant the amount of the smaller
fee.” Pub. L. 99-80, § 3, 99 Stat. 186 (1985).
Plaintiff's attorney provided a statement of the time
expended on plaintiff's case, showing 49.5 hours of work
representing plaintiff before this court since November 4,
2014. (Doc. 29, Attach. 1, pp.9-10). Counsel noted that an
attorney fee of $7, 000.00 was awarded pursuant to the EAJA,
that her agreement with Plaintiff anticipated a fee of 25% of
past-due benefits as allowed by the Social Security Act, and
that the Commissioner had withheld $15, 230.75 (25% of the
past-due benefits) from her award to Plaintiff, to apply to
payment of counsel's fee. Counsel requests an award of
the portion of past-due benefits withheld by the Commissioner
as a fee, and recognizes that she must also refund the $7,
000.00 EAJA fee award to Plaintiff.
Commissioner responded to Plaintiff's motion, noting that
she has no objection to payment of the fee and asking that
the court order counsel to refund the EAJA fee to Plaintiff.
court finds an attorney fee of $15, 230.75 to be reasonable
in the circumstances of this case.
IS THEREFORE ORDERED that Plaintiff's motion for
an attorney fee of $15, 230.75 pursuant to § 206(b) of
the Social Security Act (Doc. 28) is GRANTED.
IS FURTHER ORDERED that pursuant to 42 U.S.C. §
406(b)(1) the Commissioner shall pay plaintiff's counsel
the sum of $15, 230.75 from Plaintiff's past-due
benefits. Because the amount awarded as an attorney fee under
the EAJA was less than the amount awarded under the Social
Security Act, the EAJA attorney fee award totaling $7,