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Ibarra v. Berryhill

United States District Court, D. Kansas

July 23, 2018

ALMA DELIA IBARRA, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM AND ORDER

          KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.

         Alma Delia Ibarra appealed the final decision of the Commissioner of Social Security to deny disability benefits under Title II of the Social Security Act (“SSA”), 42 U.S.C. §§ 401 et seq. and supplemental security income (“SSI”) benefits under Title XVI of the SSA. On September 21, 2016, pursuant to the fourth sentence of 24 U.S.C. § 405(g), the Court entered judgment reversing the Commissioner's decision and remanding the case for further proceedings. Judgment In A Civil Case (Doc. #33). On January 3, 2017, pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), the Court awarded plaintiff attorney's fees in the amount of $6, 900.00. Order Granting Attorney's Fees Under The Equal Access To Justice Act (EAJA) (Doc. #25). On January 10, 2018, the Social Security Administration notified plaintiff of a fully favorable decision on remand. See Memorandum In Support Of Motion For Attorney Fees (Doc. #37) filed May 21, 2018, Exhibits C and D. This matter comes before the Court on plaintiff's Motion For Approval Of Attorney Fees (Doc. #36) filed May 21, 2018.

         Background Information

         On April 27, 2015, plaintiff and her attorney entered into a contingency fee agreement regarding representation in federal court. See Contingent Fee Agreement, Exhibit A to Memorandum In Support Of Motion For Attorney Fees (Doc. #37). The agreement provides that in the event benefits are awarded, subject to review, approval and/or modification by the court, counsel shall receive 25 per cent of all past due social security disability and SSI benefits. Id.

         As noted, the Court previously entered judgment reversing and remanding the Commissioner's decision and awarded attorney's fees under the EAJA in the amount of $6, 900.00. Order Granting Attorney's Fees Under The Equal Access To Justice Act (EAJA) (Doc. #25).

         On remand, the Social Security Administration decided the case fully in favor of plaintiff. See Counsel's Affidavit ¶ 2, Exhibit D to Memorandum In Support Of Motion For Attorney Fees (Doc. #37). It determined an onset of disability beginning January 26, 2012 and awarded past-due disability benefits in the amount of $67, 139.00 and past-due SSI benefits in the amount of $1, 861.30. See id. From past-due disability benefits, i.e. $67, 139.00, the Social Security Administration withheld 25 per cent, i.e. $16, 784.75. See id. From past-due SSI benefits, i.e. $1, 861.30, the Social Security Administration withheld no funds. See id. From the funds withheld, i.e. $16, 784.75, under 42 U.S.C. § 406(a), [1] the Social Security Administration authorized payment of $6, 000.00 to plaintiff's counsel for representation before the Commissioner. See Notice Of Award at 3-4 and Counsel's Affidavit ¶ 2, Exhibits B and D to Memorandum In Support Of Motion For Attorney Fees (Doc. #37). Regarding the remaining funds withheld, i.e. $10, 784.75, [2] the Social Security Administration informed plaintiff as follows:

We will continue to withhold the remainder, $10, 784.75[, ] in case your lawyer asks the Federal Court to approve a fee for the work that was done before the court.
Section 206(B) of the Social Security Act, as amended, governs fees for services before the court. ***

Notice Of Award at 4, Exhibit B to Memorandum In Support Of Motion For Attorney Fees (Doc. #37).

         Legal Standards

         Attorneys handling social security cases in court may seek fees under both the EAJA and the SSA. See McGraw v. Barnhart, 450 F.3d 493, 497 (10th Cir. 2006). The statutes provide two different types of fee awards which the c ourt determines separately. See id. (citing Frazier v. Apfel, 240 F.3d 1284, 1286 (10th Cir. 2001)). Under the EAJA, unless it finds that the government's position was “substantially justified” or that special circumstances make an award unjust, the Court may award fees based on a statutory maximum hourly rate of $125.00. 28 U.S.C. § 2412(d). Fees awarded under the EAJA penalize the Commissioner for assuming an unjustified legal position and are paid from agency funds. See McGraw, 450 F.3d at 497 (citing Orner v. Shalala, 30 F.3d 1307, 1309 (10th Cir. 1994)); 28 U.S.C. § 2412(d)(1)(A) (EAJA fee awarded to prevailing party). As such, the government may offset fees awarded under the EAJA to satisfy a claimant's pre-existing debt to the government. See Astrue v. Ratliff, 560 U.S. 586, 589 (2010).

         Under the SSA, the Court awards fees out of past-due benefits to satisfy a client's obligation to counsel. See 42 U.S.C. 406(b)(1)(A);[3] McGraw, 450 F.3d at 497. In awarding fees under the SSA, the Court exercises discretion. Gordon v. Astrue, 361 Fed.Appx. 933, 935 (10th Cir. 2010). The Court determines such fees based on reasonableness, with a statutory maximum of 25 per cent of past-due benefits. See id. The Court may determine a reasonable fee based on a lodestar calculation[4] or a contingency fee agreement between the attorney and client. See Gisbrecht v. Barnhart, 535 U.S. 789, 799-800 (2002).[5] SSA fees are paid directly to counsel. See McGraw, 450 F.3d at 497; 42 U.S.C. § 406(b)(1) (SSA fee paid out of past-due benefits). If counsel receives fees under both the EAJA and the SSA, counsel must refund the smaller amount to plaintiff. See McGraw, 450 F.3d at 497-98 (citing Gisbrecht, 535 U.S. at 796; Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986)).

         Analysis

         Under the SSA, 42 U.S.C. § 406(b)(1)(A), counsel asks the Court to authorize attorney's fees in the amount of $11, 235.09. Specifically, counsel seeks $10, 784.75, i.e. the amount remaining from withheld past-due disability benefits. In addition, counsel seeks 25 per cent of past-due SSI benefits, i.e. $465.32.[6] As noted, the Social Security Administration did not hold any funds from past due SSI benefits. Counsel asserts that the Social Security Administration should have withheld 25 per cent and that he is entitled to recover such amount in attorney's fees. See Memorandum In Support Of Motion For Attorney Fees (Doc. #37) at 2, ¶ 3 and Counsel's Affidavit ¶ 2, Exhibit D thereto. Counsel provides no legal authority or analysis to support a claim that he is entitled to recover the latter amount, or from whom he would recover it. ...


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