United States District Court, W.D. Oklahoma
HERBERT A. BELCHER, Plaintiff,
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
MEMORANDUM OPINION AND ORDER
T. ERWIN, UNITED STATES MAGISTRATE JUDGE
matter is before the Court on Plaintiff's Motion for
Attorney Fees Under 42 U.S.C. § 406(b), seeking an award
in the amount of $12, 734.00 which is less than the amount
counsel could request. (ECF No. 23). The Commissioner has not
Herbert Allen Belcher retained Darcie Laue to appeal the SSA
denial of his application for disability insurance benefits.
(ECF No. 23-2). The contract between Mr. Belcher and Darcie
Laue provided for payment of an attorney fee contingent upon
Mr. Belcher prevailing before the federal court and
ultimately being awarded benefits by the SSA. Under the
contract, Mr. Belcher agreed to an attorney fee in the amount
of twenty-five percent (25%) of any past-due benefits
awarded. See id.
prevailed in federal court. In an Order and Judgment dated
July 31, 2018, the Court reversed the decision of the SSA and
remanded the case for further administrative findings. (ECF
Nos. 15 & 16). On remand, Plaintiff was awarded past-due
benefits from which the SSA withheld $18, 734.25,
representing twenty-five percent (25%) of the total past due
benefit. (ECF No. 23-1:4). Pursuant to 42 U.S.C.
§406(b), and citing the contractual agreement between
the parties and Gisbrecht v. Barnhart, Plaintiff
requests a fee award in the amount of $12, 734.00. (ECF No.
FEES FOR REPRESENTATION
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. .
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).
AWARD OF § 406(b) FEES
Laue has requested § 406(b) fees in the amount of $12,
734.00, and has attached a detailed billing summary
reflecting a total of 27.10 hours. However, the amount
requested does not exceed twenty-five percent (25%) of the
total awarded past-due benefits, which would equal $18,
734.25 and is, therefore, in line with both the contractual
agreement and § 406(b). The Court has reviewed the file
and finds this amount to be reasonable.
PLAINTIFF'S AWARD OF ATTORNEY FEES UNDER THE EQUAL ACCESS
TO JUSTICE ACT (EAJA)
December 27, 2018 Plaintiff was awarded EAJA attorney fees in
the amount of $5, 669.85 as the prevailing party.
See ECF No. 20. Plaintiff's attorney therefore
must refund the lesser of the two fees to ...