United States District Court, N.D. Oklahoma
OPINION AND ORDER
H. MCCARTHY United States Magistrate Judge.
Counsel's Motion for Attorney Fees under 42 U.S.C.
406(b), [Dkt. 31], is before the court. The Commissioner has
no objection. [Dkt. 33].
November 28, 2016, the court entered an order permitting
counsel to file a motion for fees under §406(b)(1)
within 60 days after the Notice of Award containing the
amount of past due benefits was issued. [Dkt. 30]. The
Commissioner issued a Notice of Award on January 28, 2017,
and Counsel filed the instant motion on January 31, 2017
which is less than sixty days after the Notice of Award.
March 15, 2016, the court remanded this case to the
Commissioner for further administrative action. [Dkt. 24].
The Commissioner issued a fully favorable decision awarding
benefits to Plaintiff. By letter dated January 28, 2017, a
Notice of Award was provided which explained that 25% of
past-due benefits, an amount of $11, 055.75, was being
withheld for payment of attorney fees. [Dkt. 31-1].
seeks approval of an attorney fee award of $11, 055.75
pursuant to the terms of 42 U.S.C. § 406(b) and the
contingency fee contract between Plaintiff and counsel.
Counsel has certified that Plaintiff has been advised of the
fee request, and Plaintiff has expressed she does not object
to the requested fee award. [Dkt. 32].
406(b)(1) allows an award of attorney fees, payable from the
past due benefits withheld by the Social Security
Administration, when the district court has remanded a Social
Security disability case for further proceedings and benefits
are awarded on remand. McGraw v. Barnhart, 450 F.3d
493 (10th Cir. 2006). 42 U.S.C. § 406(b)(1)(A) provides
that a court may award “a reasonable fee . . . not in
excess of 25 percent of the . . . past due benefits”
awarded to the claimant. The fee is payable “out of,
and not in addition to, the amount of [the] past-due
benefits.” Section 406(b)(1)(A) does not replace
contingency fee agreements between Social Security claimants
and their counsel. Instead, that section requires the
district court to review contingency fee agreements as an
“independent check” to assure that the agreement
yields a reasonable result. Gisbrecht v. Barnhart,
535 U.S. 789, 807, 122 S.Ct. 1817, 1828, 152 L.Ed.2d 996
(2002). Section 406(b) provides a boundary that agreements
are unenforceable to the extent that they provide for fees
exceeding 25 percent of the past-due benefits. Id.
determining whether a fee resulting from a contingency fee
contract is reasonable, it is appropriate to adjust the
attorney's recovery based on the character of the
representation and the results the representation achieved. A
reduction is in order if the attorney is responsible for
delay, so the attorney will not profit from the accumulation
of past-due benefits while the case is pending in court. In
addition, if the benefits are large in comparison to the
amount of time counsel spent on the case, the fee award may
be adjusted. Id. 535 U.S. at 808, 122 S.Ct. at 1828.
Further, the burden to prove the fee is reasonable is placed
upon the attorney seeking the fee. Id. at n.17.
and counsel entered into a contract, [Dkt. 31-2], which is a
contingency fee arrangement that provides if the attorney
prevails before the federal court on Plaintiff's behalf,
and Plaintiff is awarded benefits by the Social Security
Administration, Plaintiff agrees to pay counsel a fee for
federal court work equal to 25% of the past due benefits.
court concludes that the requested fee award of $11, 055.75
which is 25% of Plaintiff's past due benefit award as
reflected in the record submitted is reasonable. That award
comports with the contract between counsel and Plaintiff and
is within the statutory limits of §406(b). The fee
yields an hourly rate of approximately $619.37 per hour for
17.85 hours of work performed before the district court,
which does not amount to a windfall. Often a fee recovery in
a percentage-based contingency fee contract will be higher
than the fee produced by a straight hourly rate agreement.
That circumstance serves to induce attorneys to risk
providing legal services in cases where they may not be paid.
And finally, when the amount of the EAJA fee award, $3,
537.75, is returned to Plaintiff in accordance with
Weakley v. Brown, 803 F.2d 575, 580 (10th Cir.
1986), the net result is an out-of-pocket payment from
Plaintiff of $7, 518.00 which is 17% of her past due
Attorney's Motion for an Award of Attorney Fees Under 42
U.S.C. § 406(b) and Fed.R.Civ.P. 60(b)(6), [Dkt. 31], is
GRANTED as follows:
is awarded $11, 055.75 to be paid from Plaintiffs past due
benefits being withheld by the Commissioner for attorney
fees. In accordance with Weakley v. Brown, 803 F.2d
575, 580 (10th Cir. 1986), upon receipt of payment, counsel
is required to refund $3, 537.75 to Plaintiff, which is the
amount of the EAJA awards.