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Carl M. v. Berryhill

United States District Court, D. Kansas

December 4, 2018

CARL M., Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          MEMORANDUM AND ORDER

          JULIE A. ROBINSON CHIEF UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Plaintiff's Motion for Attorney Fees (Doc. 33), which seeks attorney's fees in the amount of $12, 000.00 pursuant to 42 U.S.C. § 406(b). Defendant does not object, but asks the Court to award reasonable fees. For the following reasons, the Court grants Plaintiff's motion. The Court also orders Plaintiff's counsel, David H. M. Gray, to refund to Plaintiff the smaller fee amount ($5, 627.55) that he received under the Equal Access to Justice Act (“EAJA”) after Mr. Gray receives his $12, 000.00 in attorney's fees from the Commissioner.

         I. Background

         Plaintiff retained counsel on or about April 25, 2012, entering into a contingent-fee agreement for twenty-five percent of all retroactive benefits. After Plaintiff's claim was denied at all administrative levels, Plaintiff sought judicial review in this Court. On August 6, 2015, the Court granted Defendant's unopposed Motion for Remand, reversing the Commissioner's decision pursuant to sentence four of 42 U.S.C. § 405(g) and remanding this case for further administrative proceedings.[1] On January 12, 2016, the Court awarded attorney's fees under the EAJA, 28 U.S.C. § 2412(d), in the amount of $5, 627.55.[2]

         On remand, Plaintiff was found disabled as of March 16, 2011.[3] The Commissioner awarded Plaintiff total retroactive benefits of $75, 000.00 and withheld twenty-five percent, $18, 750.00, for attorney's fees.[4]

         Defendant has responded to Plaintiff's Motion for Attorney Fees, taking no position on counsel's fee request but deferring to the Court's discretion on the reasonableness of the award.[5]Defendant notes that in addition to fees being capped at twenty-five percent of past-due benefits under § 406(b), Plaintiff must be refunded the lesser of the fees awarded under § 406(b) and the EAJA.[6]

         II. Legal Standard

         Attorneys representing clients in Social Security proceedings may seek fees under both the EAJA and the Social Security Act (“SSA”), 42 U.S.C. § 406(b). “There are several differences between the two types of fees. For example, EAJA fees are awarded based on a statutory maximum hourly rate, while SSA fees are based on reasonableness, with a maximum of twenty-five percent of [the] claimant's past-due benefits.”[7] Fees awarded under the EAJA penalize the Commissioner for taking an “unjustified legal position” and are paid out of agency funds to the claimant.[8] Because fees awarded under the EAJA are paid to the claimant, they are “subject to a Government offset to satisfy a pre-existing debt that the litigant owes to the United States.”[9] In contrast, fees awarded under the SSA “satisfy a client's obligation to counsel and, therefore, are paid out of the plaintiff's social security benefits” to his or her attorney.[10] “If counsel is awarded fees under both the EAJA and the SSA, counsel must refund the smaller amount to the claimant.”[11]

         The Court has already awarded fees under the EAJA and must now decide the reasonableness of counsel's separate fee request under the SSA. Title 42 U.S.C. § 406(b)(1)(A) 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.”[12] The statute allows courts to award fees based on a contingent-fee agreement, but the court must act as an independent check on such agreements to assure that they satisfy the statutory requirement of yielding “reasonable results in particular cases.”[13] Fees may be awarded when a plaintiff is awarded past-due benefits after the court has remanded for further administrative proceedings.[14] The amount of the fee award is left to the Court's sound discretion.[15]

         In determining whether a contingent-fee agreement produces reasonable results or whether the fee award should be reduced, the Supreme Court has directed courts to consider several factors, specifically: (1) the character of the representation and whether the results it achieved were substandard; (2) whether the attorney was responsible for delay that caused benefits to accrue during the pendency of the case; and (3) whether the benefits awarded are large in comparison to the amount of time counsel spent on the case.[16] The Supreme Court noted that “the comparison of amount of benefits to time spent might be aided by submission of plaintiff's attorney's billing record and normal hourly billing rate.”[17]

         III. Discussion

         Applying the Gisbrecht factors, the Court concludes that the requested fee of $12, 000.00, which is sixteen percent of the award of past-due benefits, is reasonable. Plaintiff's counsel has made an adequate showing under the first two factors. After representing Plaintiff for four years (one year before this Court), counsel obtained a favorable result-nearly seven years of past-due benefits. And the Court finds no evidence that counsel was responsible for any delay in this case.

         Regarding the third factor-whether the benefits awarded are large in comparison to the amount of time counsel spent on the case-the Court notes that Plaintiff's counsel has submitted a table reflecting hours he spent on various tasks necessary to his representation of Plaintiff in this Court, [18] but no affidavit stating his usual hourly rate, despite bearing the burden of persuasion on his fee request.[19] However, counsel references a three-paragraph affidavit he submitted in support of his earlier motion for fees under the EAJA, which states that he is an experienced practitioner in the area of Social Security disability and that his usual hourly rate is $250.00.[20]

         Consistent with Gisbrecht, this Court is mindful that it should not award “windfalls for lawyers” such that when “the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is . . . in order.”[21] Plaintiff's counsel seeks $12, 000.00 in fees for 29.6 hours of work during the one year in which this case was pending in federal court, which would result in an effective hourly rate of $405.41. This rate exceeds counsel's usual hourly rate by $155.41, and counsel makes no argument to support that the requested rate is comparable to that charged by attorneys of like skill and experience in similar cases. However, counsel's requested rate is within the range of § 406(b) fees awarded by the Tenth Circuit[22] and judges in this district.[23] Further, the amount of time counsel spent on this case appears to be within the range of time ...


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