United States District Court, D. Kansas
APRIL L. LICATA, Plaintiff,
ANDREW M. SAUL,  Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
W. Lungstrum United States District Judge
matter is before the court on a motion for approval of an
attorney fee (Doc. 25) pursuant to the Social Security Act,
42 U.S.C. § 206(b). Plaintiff's motion is GRANTED,
approving fees in the amount of $14, 957.75 pursuant to the
Social Security Act.
filed a claim in this court on August 12, 2016, seeking
judicial review of a decision of the Commissioner of the
Social Security Administration. (Doc 1). On June 27, 2017
this court reversed the Commissioner's decision and
remanded for further proceedings. (Doc. 21). On remand, the
Commissioner issued a fully favorable decision on October 12,
2018, and withheld $14, 957.75 for attorney fees, if
approved, before this court. (Doc. 26, Attachs. 3, 6). This
court granted attorney fees of $6, 900.00 pursuant to the
Equal Access to Justice Act (EAJA). (Doc. 24). Plaintiff now
seeks award of attorney fees of $14, 957.75 pursuant to'
206(b) of the Social Security Act. 42 U.S.C. § 406(b).
Social Security Act provides for the payment of an attorney
fee out of the past due benefits awarded to a beneficiary. 42
U.S.C. § 406(b). The court has discretion to approve
such a fee. McGraw v. Barnhart, 450 F.3d 493, 497-98
(10th Cir. 2006). However, the court has an affirmative duty
to allow only so much of the fee as is reasonable.
Gisbrecht v. Barnhart, 535 U.S. 789, 807-808 (2002);
McGraw, 450 F.3d at 498; 42 U.S.C. §
(1)(A) Whenever a court renders a judgment favorable to a
claimant under this subchapter who was represented before the
court by an attorney, the court may determine and allow as
part of its judgment a reasonable fee for such
representation, not in excess of 25 percent of the
total of the past-due benefits to which the claimant is
entitled by reason of such judgment, and the Commissioner of
Social Security may, . . . certify the amount of such fee for
payment to such attorney out of, and not in addition to, the
amount of such past-due benefits.
42 U.S.C. § 406(b)(1)(A) (emphasis added).
Supreme Court, in Gisbrecht determined that a
contingency fee agreement within the twenty-five percent
ceiling is allowed by' 206(b) of the Act, and that courts
may not use the "lodestar" method to establish a
reasonable fee. Where there is a contingency-fee agreement
between plaintiff and her attorney, the court is to look
first to the agreement and then test the agreement for
reasonableness. Gisbrecht, 535 U.S. at 807-08. In
determining reasonableness, the Court suggested that courts
should consider such factors as the character of
representation, the results achieved, whether the attorney is
responsible for any delay, and whether the benefits are large
in comparison to the amount of time counsel spent on the
case. Id. 535 U.S. at 808. The 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. Id.
plaintiff's attorney submitted an affidavit in which he
asserted that his usual billing rate for cases which are not
complex and are not contingent is $300.00 per hour. (Doc. 26,
Attach 5). Counsel also provided a statement of the time
expended on plaintiff's case showing 38.55 hours of work
representing plaintiff before this court. Id.
Commissioner responded without objection to plaintiff's
motion. (Doc. 27). He noted however that attorney fees were
awarded pursuant to the EAJA and that plaintiff's counsel
must refund the lesser of the two fees to plaintiff.
court finds that the fee is reasonable and is within the
range of fees allowed by courts within this district and the
Tenth Circuit. See Doc. 26 at pp.2-3 (citing cases
approving effective hourly fees ranging between $258.63 to
$432.02). A fee of $14, 957.75 derived from 38.55 hours of
work results in an hourly rate of $388.00, comfortably within
the range of rates cited. When considering the contingent
nature of the fee, counsel's ability to secure benefits
retroactive for several years, and that counsel is not
responsible for any inordinate delays in this case, the court
finds the fee reasonable.
IS THEREFORE ORDERED that pursuant to 42 U.S.C.
§ 406(b)(1) the Commissioner shall pay plaintiff's
counsel the sum of $14, 957.75 from plaintiff's past due
benefits. Because the amount awarded as an attorney fee under
the EAJA was less than the amount awarded under the Social