Martin v. Commissioner of Social Security Administration

          MEMORANDUM OPINION AND ORDER

          SHON T. ERWIN UNITED STATES MAGISTRATE JUDGE

         This matter is before the Court on Plaintiff's Motion for Attorney Fees Under 42 U.S.C. § 406(b), seeking an attorney fee in the total amount of $23, 445.88. (ECF No. 30). The Commissioner has responded with no objections. (ECF No. 31)

         I. PROCEDURAL BACKGROUND

         Plaintiff Carolyn Martin retained the Mitzner Law Firm to appeal the SSA denial of her application for disability insurance benefits. (ECF No. 30-1). The contract between Ms. Martin and Miles L. Mitzner provided for payment of an attorney fee contingent upon Ms. Martin prevailing before the federal court and ultimately being awarded benefits by the SSA. Under the contract, Ms. Martin agreed to an attorney fee in the amount of twenty-five percent (25%) of any past-due benefits awarded. See ECF No. 30-1.

         Plaintiff prevailed in federal court. In an Order and Judgment dated August 28, 2017, the Court remanded the case for further administrative findings. (ECF Nos. 24 & 25). On remand, Plaintiff was awarded past-due benefits of $93, 783.50 from which the SSA withheld $6, 000.00 for payment to Ms. Martin's lawyer. See ECF No. 30-2:3. Pursuant to 42 U.S.C. § 406(b), and citing the contractual agreement between the parties and Gisbrecht v. Barnhart, Plaintiff requests an attorney fee award in the total amount of $23, 445.88 which represents twenty-five percent (25%) of the past-due benefits awarded. (ECF No. 30:9 and 30-2:4).

         II. FEES FOR REPRESENTATION

         Congress has prescribed specific limitations on the amount of fees which may be awarded for representation of Social Security claims. See 42 U.S.C. § 406. Section 406 “deals with the administrative and judicial review stages discretely: § 406(a) governs fees for representation in administrative proceedings; § 406(b) controls fees for representation in court.” Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002). Subsection 406(b) provides:

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. at 789. 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 rendered.” Id. If attorney fees are also awarded under EAJA, Plaintiff's counsel is to refund the smaller amount to Plaintiff. Weakley v. Bowen, 803 F.2d 575 (10th Cir. 1986).

         III. AWARD OF § 406(b) FEES

          Mr. Mitzner has requested § 406(b) fees in the amount of $23, 445.88, and has attached a detailed billing summary reflecting a total of 30.70 hours expended at the judicial level, but does not include a statement of the lawyer's normal hourly billing rate for non-contingent-fee cases. However, the amount requested does not exceed twenty-five percent (25%) of the total awarded past-due benefits, which would equal $23, 445.88. The Court has reviewed the file and finds this amount to be reasonable.

         IV. PLAINTIFF'S AWARD OF ATTORNEY FEES UNDER THE EQUAL ACCESS TO JUSTICE ACT (EAJA)

         On February 8, 2018 Plaintiff was awarded EAJA attorney fees in the amount of $6, 500.00 as the prevailing party. See ECF No. 27. Plaintiff's attorney therefore must refund the lesser of the two fees to ...