United States District Court, D. Kansas
MEMORANDUM AND ORDER
KATHRYN H. VRATIL UNITED STATES DISTRICT JUDGE.
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.
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.
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).
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),  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,  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).
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).
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); 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 or a contingency
fee agreement between the attorney and client. See
Gisbrecht v. Barnhart, 535 U.S. 789, 799-800
(2002). 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.
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. 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. ...