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Honeycutt v. Berryhill

United States District Court, D. Kansas

November 29, 2018

BERNARD E. HONEYCUTT, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          MEMORANDUM AND ORDER

          Daniel D. Crabtree, United States District Judge.

         This matter is before the court on plaintiff's Motion for Attorney's Fees (Doc. 43). Plaintiff seeks attorney's fees in the amount of $14, 435.25 under 42 U.S.C. § 406(b). For the following reasons, the court grants plaintiff's motion for attorney's fees, and awards reasonable attorney's fees of $14, 435.25. The court also orders plaintiff's counsel-once he receives the $14, 435.25 awarded by this order-to refund to the plaintiff the smaller fee amount ($7, 994.18) granted to him under the Equal Access to Justice Act (“EAJA”), if that amount was received by plaintiff's counsel.

         I. Factual and Procedural Background

          Plaintiff hired counsel to prosecute his claim for Social Security benefits on a standard contingency basis of 25% of past due benefits. Doc. 44-1 (showing counsel retained on December 2, 2011). Plaintiff then filed a Complaint appealing the administrative decision denying him disability benefits. Doc. 1. This court reversed the decision of the Commissioner, and remanded the case for further proceedings. Doc. 29. On July 26, 2016, the court also awarded attorney fees under the EAJA in the amount of $7, 994.18. Doc. 42.

         Plaintiff received notice of award for past due benefits on June 9, 2018. Doc. 44-2. Plaintiff now asks the court to award attorney fees under the Social Security Act (“SSA”), 42 U.S.C. 406(b), based on the value of 25% of plaintiff's past due benefits, or $14, 435.25. Doc. 44 at 2. Plaintiff's counsel has provided records showing that he worked on this case for 45.55 hours. Doc. 44-3. Plaintiff's counsel also acknowledges that the EAJA requires him to refund to plaintiff the lesser of any EAJA fees received and the fees awarded under 42 U.S.C § 406. Doc. 44 at 2.

         The Commissioner of the Social Security Administration has filed a response to plaintiff's motion.[2] Doc. 45. The Commissioner does not oppose the fee request, but she asks the court to determine whether the $14, 435.25 requested is a reasonable fee. Id. The Commissioner also notes that an attorney cannot accept fees under both § 406(b) and the EAJA. Id. Should plaintiff's counsel receive fees under both, the Commissioner asks the court to order plaintiff's counsel to refund the smaller of the two fees. Id. at 2.

         II. Legal Standard

         Title 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 total of the past-due benefits.” This statute allows the court to award attorney fees in conjunction with remand for further proceedings where plaintiff eventually is awarded past due benefits. McGraw v. Barnhart, 450 F.3d 493, 503 (10th Cir. 2006). Attorneys may seek fees under both the EAJA and the SSA when handling Social Security cases in court. Id. at 497. If counsel receives fees under both the EAJA and the SSA, counsel must refund the smaller amount. Id. The amount of the fee award under 42 U.S.C. § 406(b) is committed to the court's sound discretion. Id. at 505.

         The Supreme Court has concluded that though § 406(b) does not displace contingent-fee agreements between a Social Security plaintiff and his counsel, the statute “calls for court review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). When testing a contingent-fee award for reasonableness, the Supreme Court outlined the following factors as appropriate reasons to reduce the fee award: “(1) when ‘the character of the representation and the results the representative achieved' were substandard; (2) when ‘the attorney is responsible for delay' that causes disability benefits to accrue ‘during the pendency of the case in court'; and (3) when ‘the benefits are large in comparison to the amount of time counsel spent on the case.'” Gordon v. Astrue, 361 Fed.Appx. 933, 935 (10th Cir. 2010) (quoting Gisbrecht, 535 U.S. at 808).

         III. Analysis

         Following the governing legal standard set out above, the court first examines the contingent-fee agreement between plaintiff and his counsel. Under this agreement, plaintiff hired his counsel on a standard contingency basis of 25% of past due benefits. Doc. 44-1. Plaintiff's counsel now requests $14, 435.25 in attorney's fees, which equals 25% of past due benefits. Doc. 44-2 at 3. Plaintiff's counsel asserts that this amount represents a reasonable fee based on the time expended on the representation, delay in receiving the fee, and the favorable result secured. Doc. 44 at 2.

         Under the first factor, the court considers the overall result of the case and the character of the representation. Gordon, 361 Fed.Appx. at 935. Plaintiff's counsel secured from this court a remand for further proceedings, which led to a favorable decision for plaintiff. Doc. 44 at 1. On remand, the Administrative Law Judge found plaintiff was disabled beginning in July of 2009 with retroactive benefits beginning in January of 2010. Id. Because plaintiff's counsel secured an overall favorable result for his client, this factor favors a finding that the requested fee is reasonable.

         When analyzing the second factor, the court considers whether plaintiff's counsel has caused a delay, allowing benefits to accrue. Gordon, 361 Fed.Appx. at 935. Plaintiff's counsel notes that delay in the appeals process resulted from plaintiff's previous counsel not contacting plaintiff. Doc. 10 at 318-320. But at the same time, plaintiff's counsel filed three motions to extend the deadline to file plaintiff's brief, and the court granted all of them. Doc. 11; Doc. 14; Doc. 16. These extensions, taken together, extended the deadline by a total of 98 days. While the court recognizes that seeking additional time to become familiar with the case is not uncommon for a new attorney who takes over an existing case, these extensions were lengthy. This factor is a neutral one.

         Finally, the court considers whether the fee is reasonable compared to the time counsel spent on the case. Gordon, 361 Fed.Appx. at 935. Plaintiff's counsel has submitted time records showing that he spent 45.55 hours working on this case. Doc. 44-3. Plaintiff seeks $14, 435.25 in attorney fees which computes to an hourly rate of about $317.[3] Defendant does ...


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