United States District Court, D. Kansas
BERNARD E. HONEYCUTT, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,  Defendant.
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge.
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.
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.
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.
Commissioner of the Social Security Administration has filed
a response to plaintiff's motion. 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.
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.
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).
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.
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.
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.
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. Defendant does