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Weed v. Colvin

United States District Court, D. Maine

July 15, 2016

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant


          John H. Rich III United States Magistrate Judge

         The plaintiff’s attorney in this Social Security benefits case, in which the parties have consented to have me preside, seeks an award of fees pursuant to 42 U.S.C. § 406(b) in the amount of $30, 197.50 in connection with an award of past-due benefits to the plaintiff. The commissioner does not oppose the request. Defendant’s Response to Plaintiff’s Motion for Award of § 406(b) Fees (ECF No. 23). I grant the motion.

         I. Factual and Procedural Background

         On June 11, 2014, the plaintiff executed a contingent fee agreement with Attorney Riley L. Fenner in connection with his appeal to this court of the commissioner’s adverse decision on the plaintiff’s application for Social Security Disability benefits. Representation and Fee Agreement (ECF No. 22-1) at 2. The agreement provided, in relevant part: “Client and Attorney Representative understand that if a court awards a fee under Section 206(b) of the Act, generally SSA will certify direct payment to the Attorney Representative of up to 25 percent of the Client’s [T]itle II past-due benefits. However, SSA withholds a maximum of 25 percent of past-due benefits for payment of fees, whether authorized by SSA, a court, or both.” Id. at 1.

         On February 19, 2015, following the plaintiff’s filing of his Itemized Statement of Specific Errors (ECF No. 13), the commissioner filed an unopposed motion to reverse the decision of which the plaintiff complained and remand the case for further action. ECF No. 15. The motion was granted the next day. ECF No. 16.

         On March 17, 2015, the plaintiff filed an unopposed petition for an award of attorney fees pursuant to the Equal Access to Justice Act (“EAJA”). ECF No. 18. On March 19, 2015, this court entered an order approving payment under the EAJA in the amount of $4, 864. ECF No. 21. Further, the plaintiff’s attorney has already received payment of $6, 000 for work performed in this matter at the administrative level. Petition for Authorization of an Attorney Fee Pursuant to the Social Security Act (“Petition”) (ECF No. 22) at 2. That amount, plus the $30, 197.50 sought by the instant petition, would equal 25% of the $144, 790 in past-due benefits awarded to the plaintiff. Id.

         The plaintiff’s attorney’s itemized statement of work performed in this court indicates that he expended 25.6 hours of attorney time, without indicating an hourly rate. ECF No. 22-3.

         II. Discussion

         Section 406 provides, in relevant part:

Whenever a court renders a judgment favorable to a claimant under this subchapter [i.e., Title II] 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).

         This court has authority to award court-related fees pursuant to section 406(b), even though the benefits award itself was made by the commissioner on remand. See, e.g., Horenstein v. Secretary of Health & Human Servs., 35 F.3d 261, 262 (6th Cir. 1994) (overruling “single tribunal rule” of Webb v. Richardson, 472 F.2d 529 (6th Cir. 1972), pursuant to which only the tribunal that ultimately upheld a claim for benefits could approve and certify payment of section 406 attorney fees; joining majority of circuits-including the First Circuit-in ruling, inter alia, that “in cases where the court remands the case back to the [commissioner] for further proceedings, the court will set the fee-limited to 25 percent of past-due benefits-for the work performed before it, and the [commissioner] will award whatever fee the [commissioner] deems reasonable for the work performed on remand and prior administrative proceedings.”)

         The making of an application for an award of attorney fees pursuant to the EAJA does not preclude an award of attorney fees pursuant to section 406(b). However, a claimant’s attorney must refund the smaller of the EAJA fee or the section 406(b) fee to the claimant. See, e.g., Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (“Congress harmonized fees payable by the Government under EAJA with fees payable under § 406(b) out of the claimant’s past-due Social Security benefits in this manner: Fee awards may be made under both prescriptions, but the claimant’s attorney must refund to the claimant the amount of the smaller fee.”) (citation and internal punctuation omitted).[1]

         This court has a duty to satisfy itself that a section 406(b) contingency fee is “reasonable[.]” Id. at 807 (“Most plausibly read, . . . § 406(b) does not displace contingent fee arrangements 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. Congress has provided one boundary line: Agreements are unenforceable to the extent that they provide for fees exceeding 25 percent of past-due benefits. Within the 25 ...

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