United States District Court, N.D. Oklahoma
RICHARD C. HAVENER, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of the Social Security Administration, Defendant.
OPINION AND ORDER
J. Cleary, United States Magistrate Judge.
the Court is the Motion for Attorney Fees Pursuant to 42
U.S.C. §406(b) filed by plaintiff's counsel. [Dkt.
#22]. Plaintiff's counsel seeks $18, 000 in
attorney's fees pursuant to the terms of 42 U.S.C. §
406(b) and the contract between plaintiff and counsel.
Id. Counsel has certified that plaintiff has been
advised of the fee request, as required by General Order
07-06, and has filed plaintiff's signature stating that
he does not object to the attorney's fees request.
Id. at Ex. C. The Motion is GRANTED as provided
applied for Title II Disability Insurance Benefits and Title
XVI, Supplemental Security Income Benefits on March 15, 2006
alleging disability beginning January 15, 2006. He appeared
pro se at an ALJ hearing on May 20, 2008 and
received an unfavorable decision on June 9, 2008. On August
7, 2008, plaintiff retained attorney Nathan E. Barnard, who
filed a Request for Review to the Appeals Council
(“AC”). The request was denied.
May19, 2009, plaintiff, through counsel, appealed the AC
denial to this court. On September 21, 2010, the court denied
the appeal and entered judgment in favor of the Commissioner.
Plaintiff, through counsel, appealed the district court
decision, and on September 9, 2011, the Tenth Circuit
reversed the district court decision and remanded the case to
5, 2012, plaintiff, represented by counsel, presented his
case at a second ALJ hearing. The ALJ issued an unfavorable
decision on July 27, 2012. On August 24, 2012, the decision
was appealed to the AC, which denied the case on August 15,
2013. On October 21, 2013, the decision was appealed to the
District Court, which entered judgment in favor of plaintiff
on January 27, 2015. [Dkt. ##20-21].
August 7, 2015, plaintiff had a third ALJ hearing with a
different ALJ, who awarded plaintiff a closed period of
benefits (January 15, 2006, through March 30, 2103), because
plaintiff had returned to work. The Commissioner determined
that Plaintiff was entitled to disability benefits, including
an award of past-due SSI and DIB benefits of $118, 754. [Dkt.
application for attorney fees under the Equal Access to
Justice Act (“EAJA”) was filed and
plaintiff's counsel was awarded $7, 599.80 on April 3,
2012. [Dkt. #22, Ex. B]. Plaintiff's counsel advises that
currently a request for approval of attorney fees pursuant to
42 U.S.C. § 406(a) in the amount of $9, 647.35 is
pending approval before ALJ David Engel in the Tulsa Office
of Disability Adjudication and Review.
counsel seeks approval of attorney fees in the amount of $18,
000, or approximately 15.16 percent of the past-due benefits.
[Dkt. #22 at 3]. Plaintiff has been notified of the pending
motion and does not object to the fee request. [Dkt. #22, Ex.
response, the Commissioner states that to the extent
plaintiff's counsel attempts to base the reasonableness
of his 406(b) request on the net fee (i.e., the fee after
subtraction of EAJA fees), the court must find it without
merit, [Dkt. #25 at 3-4]. Otherwise, the Commissioner posts
no objection to the requested fee.
plaintiff appeals to the court and is successful, the
attorney representing the plaintiff can be awarded fees for
work before the court up to 25 percent of the past due
benefit award. Wrenn ex rel. Wrenn v. Astrue, 525
F.3d 931, 933 (10th Cir. 2008) (citing 42 U.S.C. §
406(b)(1)(A)). The court must review a request for fees as an
independent check that the fees are reasonable in a
particular case. Gisbrecht v. Barnhart, 535 U.S.
789, 807-08 (2002). Factors to be considered include (1)
whether the legal work was substandard or performed in a
professional manner; (2) whether the attorney caused an
unreasonable delay which resulted in a larger fee; and (3)
whether the fee amount is unexpectedly large or results in
such an unforeseen profit by the attorney that the fee is
Court finds that a fee award of $18, 000 is reasonable. The
legal work performed by plaintiff's counsel resulted in
reversal of the agency's previous denials and a finding
on remand that plaintiff was disabled and entitled to
disability benefits totaling $118, 754. Further, the amount
sought is less than the amount provided by the contract
between counsel and plaintiff and is within the statutory
limits of Section 406(b). [Dkt. #34-1]. According to
counsel's itemization of billing hours, 43 attorney hours
and 19.65 paralegal hours were devoted to the court case.
the attorney time only, the requested fee award yields an
hourly rate of $418.60. This rate does not result a windfall
that should be downwardly adjusted by the Court pursuant to
Gisbrecht. Contingency fee contracts often result in
a higher hourly fee recovery than a non- contingent hourly
fee would produce because contingency fee contracts have the
risk that there will be no fee recovery and the possibility
of a higher recovery balances the risk of no recovery.
Additionally, when the total amount of the EAJA fee award,
$7, 669.80, is returned to Plaintiff in accordance with
Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir.
1986), the net result is a fee that is an out-of-pocket
expense to Plaintiff of $10, 330.20, which is approximately
8.7 percent of the past due and auxiliary benefits. The
undersigned finds the amount of the award to be reasonable.
Motion [Dkt. #34] is GRANTED. The Court finds $18, 000.00 is
a reasonable attorney fee and is hereby awarded to Plaintiffs
counsel. Upon receipt of payment, counsel is required to