United States District Court, D. South Carolina, Aiken Division
V. Hodges Columbia, South Carolina United States Magistrate
matter is before the court on Plaintiff's counsel's
motion for fees under 42 U.S.C. § 406(b). [ECF No. 22].
On September 11, 2015, the court reversed the
Commissioner's decision that had denied Plaintiff's
claim for social security disability benefits and remanded
the case for further administrative proceedings pursuant to
sentence four of 42 U.S.C. § 405(g). [ECF No. 16]. On
September 29, 2015, the court issued an order granting
Plaintiff's motion for fees under the Equal Access to
Justice Act (“the EAJA”) and directing the
Commissioner to pay Plaintiff $5, 000. [ECF No. 22]. The
Commissioner subsequently awarded total past-due benefits in
the amount of $61, 286. [ECF No. 23 at 1]. On November 28,
2017, counsel requested the court authorize a fee in the
amount of $15, 321.50, which represents 25% of past-due
benefits resulting from the claim, as agreed to by Plaintiff
in the contingent fee agreement dated December 8, 2013. [ECF
Nos. 22 at 1 and 22-2 at 1]. Counsel represented that he had
consulted with and obtained the Commissioner's consent to
the fee through email correspondence with Assistant Regional
Counsel Patricia Stewart in the Social Security
Administration's Office of the General Counsel. [ECF No.
22-3]. The court has considered the motion for fees, and for
the reasons that follow, the court approves the motion under
42 U.S.C. § 406(b), as set forth herein.
Consideration of Motion for Attorney Fees Under 42 U.S.C.
court renders a favorable judgment to a claimant in a claim
brought against the Commissioner, the court may
“determine and allow as part of its judgment a
reasonable fee” to the claimant's attorney that is
“not in excess of 25 percent of the total of the
past-due benefits to which the claimant is entitled by
reasons of such judgment.” 42 U.S.C. §
406(b)(1)(A). The Supreme Court held in Gisbrecht v.
Barnhardt, 535 U.S. 789 (2002), that 42 U.S.C. §
406(b) instructs courts to review contingent fee agreements
for reasonableness where the agreed-upon fee does not exceed
the statutory ceiling of 25%. However, the contingent fee may
be reduced from the agreed-upon amount “when (1) the
fee is out of line ‘with the character of the
representation and the results . . . achieved, ' (2)
counsel's delay caused past-due benefits to accumulate
‘during the pendency of the case in court, ' or (3)
past-due benefits ‘are large in comparison to the
amount of time counsel spent on the case.'”
Mudd v. Barnhardt, 418 F.3d 424, 427 (4th Cir.
2005), citing Gisbrecht at 808.
filed a copy of the contingent fee agreement, signed by
Plaintiff, which provides in relevant part:
I agree to pay the firm a contingent fee of 25% of
the recovery from this case. This fee shall be taken out of
the gross recovery, before any medical bills or other costs
are subtracted. This fee shall constitute a lien on any
judgment or settlement. The above fee applies whether the
case is granted outright by the U.S. District Court or
granted upon remand.
No. 22-2 at 1]. Because the agreed-upon fee does not exceed
the statutory ceiling of 25% set forth in Gisbrecht,
the court considers only the reasonableness of the fee.
court concludes that the fee is not out of line with the
character of the representation and the results achieved.
Counsel represented the claimant over a period of more than
six years in both administrative and district court
proceedings. See ECFs No. 11-1 at 133; 23. Counsel
obtained total past-due benefits on claimant's behalf in
the amount of $61, 286 for the period from August 9, 2012,
through July 2017. [ECF No. 23 at 1-2]. In consideration of
the nature of the representation at both the administrative
and district court levels, the period of the representation,
and the amount of past-due benefits obtained for Plaintiff,
the court concludes that the fee is not out of line with the
character of the representation and the results achieved.
court further determines that counsel did not cause any
delays that affected the accumulation of past-due benefits
during the pendency of the case in this court. Counsel filed
briefs prior to the deadlines and requested no extensions.
See ECF Nos. 10, 12, 13, and 14.
court finds that the requested fee is not large in comparison
to the amount of time counsel spent on the case. The record
reflects that counsel represented the claimant for 31 hours
at the district court level. [ECF No. 22-1 at 1]. Although an
hourly rate of $494.24 seems excessive, the court may
consider as part of the reasonableness determination the work
expended by counsel at the agency level. See Mudd v.
Barnhardt, 418 F.3d 424, 428 (4th Cir. 2005) (while the
court may not award attorney's fees based on the
attorney's work at the agency level, the court may
consider “as one factor in its reasonableness
determination, the work performed by counsel on the case when
it was pending at the agency level”). The court
remanded the case to the agency on September 11, 2015. [ECF
No. 16]. Counsel represented Plaintiff at the agency level
from July 8, 2011, through December 18, 2014, and again from
September 11, 2015, through November 23, 2017. ECF Nos. 11-1
at 1 and 133; 16; and 23. Based on the length of the
administrative process and result achieved, the court
concludes counsel devoted substantial time to the claim at
the administrative level. In light of the foregoing, the
requested fee is not unreasonably large in comparison to the
amount of time counsel spent on the case.
court finds that the contingent fee agreement complies with
42 U.S.C. § 406(b)(1)(A) in that it is both reasonable
and does not exceed the statutory maximum fee. Therefore, the
court grants Plaintiff's counsel's motion for fees
under 42 U.S.C. § 406(b) and approves a total
attorney's fee of $15, 321.50. II. Refund of EAJA Fees
The Gisbrecht Court directed that the attorney
should refund the smaller fee to “the claimant”
when the attorney obtained fees under both the EAJA and 42
U.S.C. § 406(b). Therefore, the court directs counsel,
upon receipt of the total fee approved herein, to refund to
Plaintiff the $5, 000 EAJA fee paid in this action.