United States District Court, E.D. Oklahoma
REBECCA C. GRABOWSKI-BRIDGES, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
OPINION AND ORDER AWARDING ATTORNEY'S FEES UNDER
42 U.S.C. § 406(B)
P. Shreder United States Magistrate Judge.
Plaintiff appealed the decision of the Commissioner of the
Social Security Administration denying her request for
benefits. The Court reversed the Commissioner's decision
and remanded the case for further proceedings. On remand, the
Administrative Law Judge (“ALJ”) found that the
Plaintiff was disabled and awarded her $157, 009.00 in
past-due benefits under Title II. The Plaintiff's
attorney now seeks an award of fees pursuant to 42 U.S.C.
§ 406(b)(1). For the reasons set forth below, the Court
finds that the Plaintiff's Motion for Attorney Fees
Pursuant to 42 U.S.C. § 406(b) [Docket No. 26] should be
granted and that Plaintiff's attorney should be awarded
$39, 252.25 in attorney's fees.
“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[.]” 42 U.S.C. 406(b)(1)(a). The 25% does not
include any fee awarded by the Commissioner for
representation in administrative proceedings pursuant to 42
U.S.C. § 406(a). Wrenn v. Astrue, 525 F.3d 931,
937 (10th Cir. 2008) (“Based on the plain language and
statutory structure found in § 406, the 25% limitation
on fees for court representation found in § 406(b) is
not itself limited by the amount of fees awarded by the
Commissioner.”). The amount requested in this case is
$39, 252.25, exactly 25% of the Plaintiff's past-due
benefits in accordance with the applicable attorney fee
agreement, and the motion was timely filed well within thirty
days following issuance of the notice of award. See
Harbert v. Astrue, 2010 WL 3238958 at *1 n. 4 (E.D.
Okla. Aug. 16, 2010) (slip op.) (“The Court notes here
that while no explanation is needed for a Section 406(b)(1)
motion filed within thirty days of issuance of the notice of
appeal, lengthier delays will henceforth be closely
scrutinized for reasonableness, including the reasonableness
of efforts made by appellate attorneys to obtain a copy of
any notice of award issued to separate agency
counsel.”). See also McGraw v. Barnhart, 450
F.3d 493, 504-505 (10th Cir. 2006) (“Section 406(b)
itself does not contain a time limit for fee requests. . . .
We believe that the best option in these circumstances is for
counsel to employ Federal Rule of Civil Procedure 60(b)(6) in
seeking a § 406(b)(1) fee award.”); Fed.R.Civ.P.
60(c)(1) (“A motion under Rule 60(b) must be made
within a reasonable time[.]”). The Court therefore need
only determine if this amount is reasonable for the work
performed in this case. Gisbrecht v. Barnhart, 535
U.S. 789, 807 (2002) (“[Section] 406(b) does not
displace contingent-fee agreements as the primary means by
which fees are set for successfully representing Social
Security benefits claimants in court. Rather, § 406(b)
calls for court review of such arrangements as an independent
check, to assure that they yield reasonable results in
particular cases.”). Factors to consider include: (i)
the character of the representation and results achieved,
(ii) whether any dilatory conduct might allow attorneys to
“profit from the accumulation of benefits during the
pendency of the case in court[, ]” and (iii) whether
“the benefits are [so] large in comparison to the
amount of time counsel spent on the case” that a
windfall results. Id. at 808, citing McGuire v.
Sullivan, 873 F.2d 974, 983 (7th Cir. 1989) (reducing
fees for substandard work); Lewis v. Secretary of Health
& Human Services, 707 F.2d 246, 249-50 (6th Cir.
1983) (same); Rodriguez v. Bowen, 865 F.2d 739,
746-47 (6th Cir. 1989) (noting fees are appropriately reduced
when undue delay increases past-due benefits or fee is
unconscionable in light of the work performed); Wells v.
Sullivan, 907 F.2d 367, 372 (2nd Cir. 1990) (court
should consider “whether the requested amount is so
large as to be a windfall to the attorney”).
Contemporaneous billing records may be considered in
determining reasonableness. Gisbrecht, 535 U.S. at
808 (“[T]he court may require the claimant's
attorney to submit, not as a basis for satellite litigation,
but as an aid to the court's assessment of the
reasonableness of the fee yielded by the fee agreement, a
record of the hours spent representing the claimant and a
statement of the lawyer's normal hourly billing charge
for noncontingent-fee cases.”), citing
Rodriguez, 865 F.2d at 741.
on the factors enunciated in Gisbrecht, the Court
concludes that $39, 252.25 in attorney's fees is
reasonable for the work done in this case. First, the
attorney ably represented the Plaintiff in his appeal to this
Court and obtained excellent results on his behalf, i.
e., a reversal of the Commissioner's decision
denying benefits and remand for further consideration. The
Plaintiff's success on appeal enabled her not only to
prevail in her quest for social security benefits, but also
to obtain $12, 528.15 in attorney's fees from two
previous remands as the prevailing party on appeal under the
Equal Access to Justice Act, 28 U.S.C. § 2412(d), which
will essentially reduce any amount awarded from his past-due
benefits pursuant to Section 406(b). Second, there is no
evidence that the Plaintiff's attorneys caused any
unnecessary delay in these proceedings. Third, the requested
fee does not result in any windfall to the Plaintiff's
attorney, who spent a total of 70.8 hours over the course of
her two appeasls. See Docket No. 22, Ex. 1. This
would equate to a rate of $554.41 per hour at most, which is
hardly excessive given that the fee was contingent and the
risk of loss was not negligible. The Court therefore
concludes that the requested fee of $39, 252.25 is reasonable
within the guidelines set by Gisbrecht.
notice of award reflects that the Commissioner withheld $39,
252.25 from the Plaintiff's past-due benefits for payment
of attorneys' fees. It is not clear from the record,
however, whether the Commissioner retains sufficient funds on
hand to satisfy the $39, 252.25 awarded herein. If for any
reasons the Commissioner may not have sufficient funds on
hand, the Plaintiff's attorney will have to recover the
difference from the Plaintiff herself, not from her past-due
benefits. See Wrenn, 525 F.3d at 933 (“If the
amount withheld by the Commissioner is insufficient to
satisfy the amount of fees determined reasonable by the
court, the attorney must look to the claimant, not the
past-due benefits, to recover the difference.”).
Furthermore, because the $39, 252.25 awarded herein pursuant
to Section 406(b)(1) exceeds the $12, 528.15 previously
awarded to the Plaintiff under the EAJA, the Plaintiffs
attorney must refund the latter amount to the Plaintiff.
See Weakley v. Bowen, 803 F.2d 575, 580 (10th
the Plaintiffs Motion for Attorney Fees Pursuant to 42 U.S.C.
§ 406(b) [Docket No. 26] is hereby GRANTED. The Court
approves an award of attorney fees in the amount of $39,
252.25 to the Plaintiffs attorney pursuant to 42 U.S.C.
§ 406(b)(1), and directs the Commissioner to pay to the
Plaintiffs attorney the balance of any past-due benefits in
her possession up to said amount. The Plaintiffs attorney
shall thereupon refund to the Plaintiff the full amount
previously awarded under the EAJA.
IS SO ORDERED.
 On January 20, 2017, Nancy A.
Berryhill became the Acting Commissioner of Social Security.
In accordance with Fed.R.Civ.P. 25(d), Ms. Berryhill is
substituted for Carolyn Colvin ...