United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE.
before the Court is Plaintiff Wendy Hanaway's Motion for
Attorney Fees Under 42 U.S.C. § 406(b) (Doc. No. 28),
filed through Plaintiff's counsel Miles Mitzner.
September 18, 2018, the Court entered a Judgment reversing
the 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. 21) at 1. On
August 12, 2019, the Social Security Administration
(“SSA”) issued a favorable decision on
Plaintiff's applications and found Plaintiff disabled as
of December 27, 2011. See Pl.'s Mot. Att'y
Fees Ex. 2 (Doc. No. 28-2) at 1-2. The Commissioner has
notified Plaintiff that up to $13, 851.31 of withheld
benefits can be applied toward her attorney's fees for
work done in this action. See Id. at 3; Pl.'s
Mot. Att'y Fees at 2; id. Ex. 1 (Doc. No. 28-1)
at 1 (contingent-fee contract between Plaintiff and her
counsel prescribing that if Plaintiff is awarded benefits
after a remand from federal court, the 25% of past-due
benefits withheld by SSA will be paid to counsel).
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
Commissioner has responded that he has no objection to
Plaintiff's counsel's current request for $13, 851.31
in fees. See Def.'s Resp. (Doc. No. 29) at
The Commissioner correctly notes, however, that if fees are
now awarded pursuant to § 406(b) Plaintiff's counsel
must refund the lesser EAJA award to Plaintiff. See
Id. at 2; Order of Dec. 11, 2018, 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 $13, 851.31, which is 25% 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. Mitzner
filed a detailed opening brief, presenting a well-supported
argument that the administrative law judge erred in denying
Plaintiff's DIB and SSI claims. See Doc. No. 14.
The Commissioner filed a brief in opposition, which Mr.
Mitzner was required to review. See Doc. No. 15;
Pl.'s Mot. Att'y Fees Ex. 3 (Doc. No. 28-3) at 2. Mr.
Mitzner represents that he spent 32.35 hours litigating
Plaintiff's disability case in federal court, which would
result in an effective hourly rate of $428.17 with respect to
the requested § 406(b) fee. See Pl.'s Mot.
Att'y Fees at 8; id. Ex. 3, at 2; 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.
Mitzner agreed that the latter may collect attorney's
fees for representation before the Court in the amount of the
currently pending request. See Pl.'s Mot.
Att'y Fees Ex. 1, at 1.
Plaintiff's Motion for Attorney Fees (Doc. No. 28) is
GRANTED. Plaintiff's attorney Mr. Miles Mitzner is
awarded attorney's fees in the amount of $13, 851.31, 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: Miles
Mitzner, P.O. Box 5700, Edmond, Oklahoma 73083. Upon payment,
Mr. Mitzner shall promptly refund to Plaintiff the $6052.05
previously awarded under 28 U.S.C. § 2412. See
Order of Dec. 11, 2018, at 1-2; McGraw, 450 F.3d at
497 & n.2.
 The Court has considered this Response
despite its untimeliness. See ...