United States District Court, E.D. Oklahoma
JUSTIN CLAYBURN, as Representative for Bryan Clayburn, Deceased,  Plaintiff,
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 Bryan Clayburn 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 $130, 618.00 in past-due benefits. The Plaintiffs
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 Plaintiffs Attorney's Motion for An Award
of Attorney Fees Under 42 U.S.C. § 406(b) [Docket No.
24] should be granted and that Plaintiffs attorney should be
awarded $20, 500.00 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
$20, 500.00, approximately 15.7% 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 $20, 500.00 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 $4, 412.10 in attorney's fees as the prevailing
party on appeal under the Equal Access to Justice Act, 28
U.S.C. § 2412(d). This amount received 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 24.0 hours on this appeal. See Docket No.
24, Ex. 3. This would equate to a rate of $854.16 per hour at
most, which is not excessive given that the fee was
contingent and the risk of loss was not negligible. The Court
therefore concludes that the requested fee of $20, 500.00 is
reasonable within the guidelines set by Gisbrecht.
appears that the Commissioner retains sufficient funds to pay
the $20, 500.00 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 $20, 500.00
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 $20, 500.00
awarded herein pursuant to Section 406(b)(1) exceeds the $4,
412.10 previously received by the Plaintiff as part of the
EAJA fee award, the Plaintiffs attorney must refund the
latter amount to the Plaintiff See Weakley v. Bowen,
803 F.2d 575, 580 (10th Cir.1986).
the Plaintiffs Attorney's Motion for An Award of Attorney
Fees Under 42 U.S.C. § 406(b) [Docket No. 24] is hereby
GRANTED. The Court approves an award of attorney fees in the
amount of $20, 500.00 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
 Pursuant to Fed.R.Civ.P. 25, Justin
Clayburn is hereby substituted as Representative of Bryan
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 Plaintiff's
attorneys under Section 406(b). An attorney may not treat the
EAJA award as a credit against the Plaintiff s 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 ...