United States District Court, W.D. Oklahoma
BERNARD M. JONES, UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's timely Motion for Attorney Fees
Under 42 U.S.C. § 406(b), [Doc. No. 33]. For the reasons
discussed below, the motion is GRANTED.
February 2, 2018, the Court entered a Memorandum Opinion and
Order reversing the Commissioner's decision denying
Plaintiff's applications for disability insurance
benefits and supplemental security income and remanding the
case for further administrative proceedings. [Doc. No. 24].
On July 23, 2019, the Social Security Administration (SSA)
issued a Notice of Award finding Plaintiff was disabled and
awarding past-due benefits in the amount of $72, 026.50.
[Doc. No. 33, Attach. 2]. Counsel now seeks attorney's
fees pursuant to § 406(b). See Pl.'s Motion
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). Here, Plaintiff and
her counsel entered into a contingency fee agreement in which
Plaintiff agreed to pay her attorney a fee for federal court
work equal to a total of 25% of her past due benefits.
See Pl.'s Motion, Ex. 1. Plaintiff's counsel
requests an attorney fee of $17, 099.13, or just under 24% of
the amount of past due benefits awarded.
Court must review this request to assure it is reasonable.
See Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002)
(“[Section] 406(b) calls for court review of
[contingency fee] arrangements as an independent check, to
assure that they yield reasonable results in particular
cases.”). Factors a court considers in this process
include: (i) the character of the representation and the
results the representative achieved; (ii) if the attorney is
responsible for a delay; and (iii) if the benefits are large
in comparison to the amount of time counsel spent on the
case. Id. at 808.
the Court finds Plaintiff's attorney gained excellent
results on Plaintiff's behalf. Counsel successfully
litigated the appeal in this Court, achieving a remand over
the Commissioner's objection. Second, Plaintiff's
counsel was not responsible for any delay in this matter.
Third and finally, the Court finds the benefits are not large
in comparison to the amount of time Plaintiff's counsel
spent on the case. That is, the fee of $17, 099.13 is to
compensate for 5.5 hours of paralegal work and 22.5 hours of
attorney work. Such a fee is not excessive given that the fee
was contingent and the risk of loss was not negligible.
Therefore, the Court finds the requested fee of $17, 099.13
reasonable. See, e.g., Johnson v. Comm'r of
Soc. Sec. Admin., No. CIV-15-237-SPS, 2018 WL 2474080,
at *2 (E.D. Okla. July 19, 2018) (finding $20, 000 fee, which
compensated for a successful appeal in federal court and then
a benefits award on remand, was not unreasonable based on
29.9 attorney hours and 5.5 paralegal/intern hours).
THEREFORE ORDERED, Plaintiff s Motion for Award of
Attorney's Fees Pursuant to 42 U.S.C. § 406(b) is
GRANTED. Plaintiffs attorney is awarded attorney's fees
in the amount of $17, 099.63. Of that, $12, 006.63 is to be
paid out of the past-due benefits Plaintiff received by
reason of the remand and favorable decision in this case.
Plaintiff is then responsible for the remaining portion.
Because requiring counsel to refund the smaller $5092.50 EAJA
award to Plaintiff would leave Plaintiff owing counsel
$5092.50, the Court declines to require Ms. Troutman to
“engage in that convoluted process.” Rockwood
for Kifer v. Berryhill, No. 15-CV-408-FHM, 2019 WL
586754, at *2 (N.D. Okla. Feb. 13, 2019) (addressing how best
to approach an EAJA award refund where, as here, the SSA paid
another representative out of the 25% back benefit percentage
and the remaining funds still held by the SSA were
insufficient to pay counsel the 25% due under § 406(b)).
If, however, this results in counsel receiving more than $17,
099.63, “counsel is required to refund the excess to
 See [Doc. No. 32] (granting
Plaintiff's motion for extension to seek fees under
 The full 25% in back benefits would
total $18, 006.63. See Pl.'s Motion, Ex. 2 at 4.
But the SSA paid Plaintiff's remand agency representative
$6000.00, leaving $12, 006.63 withheld for Ms. Troutman.
See Id. Ms. Troutman therefore requests to be paid
$12, 006.63 from the withheld funds and states Plaintiff has
“agreed to use the [$5092.50] EAJA award to pay any
excess amount that may be due after the agency releases the
back benefits to counsel.” Id. at 12.
The Court finds the fee reasonable despite the fact the SSA
paid Plaintiff's remand representative $6000.00. That is,
between Plaintiff's EAJA fees ($5092.50) and the
remaining fees the SSA withheld ($12, 006.63), Ms. Troutman
is receiving less than a full 25% of the back payments.
See Culbertson v. Berryhill,139 S.Ct. 517, 523
(2019) (“the amount of past-due benefits that the
agency can withhold for direct payment does not delimit ...