United States District Court, W.D. Oklahoma
JOHN B. GRAHAM, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
CHARLES B. GOODWIN UNITED STATES MAGISTRATE JUDGE.
before the Court is Plaintiff John B. Graham's Motion for
Attorney Fees Under 42 U.S.C. § 406(b) (Doc. No. 31),
filed through Plaintiff's counsel Kyle Saunders.
September 30, 2016, the Court entered a Judgment reversing
the Acting Commissioner's decision denying
Plaintiff's applications for disability insurance
benefits (“DIB”) and supplemental security income
(“SSI”) and remanding the case for further
administrative proceedings under the fourth sentence of 42
U.S.C. § 405(g). See J. (Doc. No. 23) at 1. On
January 25, 2018, the Social Security Administration issued a
“favorable” decision on Plaintiff's DIB and
SSI applications and found Plaintiff disabled as of April 30,
2009. Pl.'s Mot. Att'y Fees at 2; Pl.'s Mot.
Att'y Fees Ex. 1 (Doc. No. 31-1) at 1, 14. The Acting
Commissioner has notified Plaintiff of $96, 188.00 in
past-due benefits and that, pursuant to Plaintiff's fee
agreement with counsel, up to $24, 047.00 of his withheld
benefits can be applied toward his attorney's fees.
See Pl.'s Mot. Att'y Fees Ex. 2 (Doc. No.
31-2) at 3, 4; Pl.'s Br. Ex. 1 (Doc. No. 32-1) at 1-2
(contingent-fee contract between Plaintiff and his counsel
prescribing that if Plaintiff is awarded benefits after a
remand from federal court, the attorney's fee “for
representation before the court” shall be the greater
of (i) 25 percent “of the past-due benefits resulting
from” Plaintiff's claim or (ii) any fee awarded
pursuant to the Equal Access to Justice Act, 28 U.S.C. §
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 . .
42 U.S.C. § 406(b)(1)(A). Any such payment must be made
“out of, and not in addition to, ” the past-due
benefits owed to the claimant. Id. This subsection
“does not displace contingent-fee agreements as the
primary means by which fees are set for successfully
representing Social Security benefits claimants in
court” so long as the agreed-upon amount stays within
the statute's “25 percent boundary.”
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). For
a fee request that lies within this boundary, “the
attorney for the successful claimant” still “must
show that the fee sought is reasonable for the services
Plaintiff's counsel's current request for $18, 000.00
in fees, the Acting Commissioner has responded that she takes
no position on this request. See Def.'s Resp.
(Doc. No. 33) at 2. The Acting Commissioner correctly notes,
however, that the Court previously awarded $6026.60 in
attorney's fees pursuant to the Equal Access to Justice
Act, so if fees are now awarded pursuant to § 406(b)
Plaintiff's counsel must refund the lesser award to
Plaintiff. See id.; Am. Order of Mar. 2, 2017 (Doc.
No. 2) at 1-2; McGraw v. Barnhart, 450 F.3d 493, 497
& n.2 (10th Cir. 2006).
carefully reviewed the parties' submissions, the Court
finds that an award of $18, 000.00, which is approximately
18.5% of the past-due benefits awarded, is a reasonable fee
award for the work performed in this case in view of the
contingent nature of the representation, the applicable
attorney-fee agreement, and the results achieved. While
before the Court, Mr. Saunders filed a detailed opening
brief, presenting several well-supported arguments that the
administrative law judge erred in denying Plaintiff's DIB
and SSI claims. See Doc. No. 15. The Acting
Commissioner filed a brief in opposition, which Mr. Saunders
was required to review. See Doc. No. 21; Pl.'s
Mot. Att'y Fees Ex. 3 (Doc. No. 31-3) at 1. Mr. Saunders
represents that he spent 31.70 hours litigating
Plaintiff's disability case in federal court (not
including time spent on attorney-fee issues), which would
result in an effective hourly rate of $567.82 with respect to
the requested § 406(b) fee. See Pl.'s Mot.
Att'y Fees Ex. 3, at 2; Pl.'s Br. (Doc. No. 32) at
11-14; see Gisbrecht, 535 U.S. at 793, 808
(rejecting the “lodestar” method of calculating
fee awards under § 406(b) but noting that the district
court may consider the hours spent and other factors in
contingency-fee cases to help assess “the
reasonableness of the fee yielded by the fee
agreement”); cf. Harlan v. Colvin, No.
CIV-13-477-D, 2015 WL 9295809, at *1 (W.D. Okla. Dec. 18,
2015) (awarding $17, 429.22 where the putative rate was
between $517.95 and $632.64 per hour). Plaintiff and Mr.
Saunders agreed that the latter may collect attorney's
fees for representation before the Court for an amount
greater than the currently pending request. See
Pl.'s Br. Ex. 1, at 1-2.
the Plaintiff's Motion for Attorney Fees (Doc. No. 31) is
GRANTED to the following extent. Plaintiff's attorney Mr.
Kyle Saunders is awarded attorney's fees in the amount of
$18, 000.00, to be paid out of the past-due benefits
Plaintiff received by reason of the remand and favorable
decision in this case. See 42 U.S.C. 406(b)(1)(A).
The Social Security Administration shall pay this amount
directly to: Kyle Saunders of Saunders & Saunders, P.O.
Box 1605, Ada, Oklahoma, 74820. Mr. Saunders shall promptly