United States District Court, D. Kansas
MEMORANDUM AND ORDER
CROW, U.S. DISTRICT SENIOR JUDGE
March 23, 2016, this court issued an order reversing the
decision of the Commissioner and remanding the case for
further hearing (Doc. 22). On October 19, 2016, this court
approved an order for attorney fees under the EAJA in the
amount of $8, 583.84 (Doc. 36).
February 27, 2018, plaintiff received a notice of award from
the defendant (Doc. 38-3). Plaintiff then filed a motion for
attorney fees under 42 U.S.C. § 406(b) (Doc. 37).
Defendant has no objection to the motion (Doc. 39).
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
retroactive disability benefits if she received an award of
benefits (Doc. 38-1). Plaintiff received an award of past due
benefits; defendant withheld $57, 032.00 from the past due
benefits (25% of past due benefits) in case they need to pay
plaintiff's legal counsel (Doc. 38-3). However,
plaintiff's counsel only seeks attorney fees of $22,
744.00, far less than the 25% permitted by the contingent fee
agreement (Doc. 37). Counsel indicated that they spent 56.85
hours related to this court action (Doc. 38-2). Defendant has
no objection to the petition in this case (Doc. 39). The fee
request thus represents an effective hourly rate of $400.07.
case of Grace v. Colvin, 2015 WL 7102292 at *1-2,
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 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, 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, 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, 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, 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, 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, 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, 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, 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, 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
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 $22, 744.00, which
represents an hourly fee of $400.07 (for 56.85 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. 37) is granted. Plaintiff's attorney is entitled to
$22, 744.00 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 $4, 691.55, which he received as fees under the
EAJA (Doc. 38-4), after plaintiff's attorney receives his
$22, 744.00 in attorney fees from the Commissioner.
 Plaintiff's counsel only received
$4, 691.55 after $3, 892.29 was withheld because of a debt
owed to the Kansas Department ...