United States District Court, E.D. Oklahoma
JEFFRY D. JOHNSON, 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 his 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 him $84, 474.00 in
past-due benefits. 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 Relief Pursuant to Fed.R.Civ.P.
60(b)(6) [Docket No. 30] should be granted and that
Plaintiff's attorney should be awarded $15, 000.00 in
“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
$15, 000.00, approximately 17.8% of the Plaintiff's
past-due benefits in accordance with the applicable attorney
fee agreement, and the motion was timely filed 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[.]”).
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 $15, 000.00 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 him not only to
prevail in his quest for social security benefits, but also
to obtain $6, 175.40 in attorney's fees 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 32.2 hours
on this appeal. See Docket No. 26, Ex. 1. This would
equate to a rate of $465.84 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 $15, 000.00 is reasonable within the
guidelines set by Gisbrecht.
not clear whether the Commissioner retains sufficient funds
to pay the $15, 000.00 awarded to the Attorney herein under
Section 406(b)(1). If, however, for any reason the
Commissioner may not have sufficient funds on hand to satisfy
the $15, 000.00 awarded herein, the Plaintiff's attorney
will have to recover the difference from the Plaintiff
himself, not from his 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 $15, 000.00
awarded herein pursuant to Section 406(b)(1) exceeds the $6,
175.40 previously awarded to the Plaintiff under the EAJA,
the Plaintiff's attorney must refund the latter amount to
the Plaintiff See Weakley v. Bowen, 803 F.2d
575, 580 (10th Cir.1986).
the Plaintiffs Motion for Relief Pursuant to Fed.R.Civ.P.
60(b)(6) [Docket No. 30] is hereby GRANTED. The Court
approves an award of attorney fees in the amount of $15,
000.00 to the Plaintiff's 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 as the Defendant in this
 The Court disapproves of any reference
to an award to the Plaintiff under the EAJA as an offset
against attorney's fees awarded to the Plaintiffs
attorneys under Section 406(b). An attorney may not treat the
EAJA award as a credit against the Plaintiffs account or
otherwise “net out” the EAJA award against any
future Section 406(b) award. See McGraw, 450 F.3d at
497 n. 2. See also Gisbrecht, 535 U.S. at 796
(“Fee awards may be made under both prescriptions, but
the claimant's attorney must ‘refun[d] to the
claimant the ...