Burley v. Social Security Administration, No. 6:2009cv00065 - Document 28 (E.D. Okla. 2013)
Court Description: OPINION AND ORDER by Judge Frank H. Seay granting 25 Motion for Attorney Fees (dma, Deputy Clerk)
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA RHONDA J. BURLEY, Plaintiff, v. CAROLYN W. COLVIN1, Commissioner Social Security Administration Defendant. ) ) ) ) ) ) ) ) ) ) No. CIV-09-65-FHS-SPS OPINION AND ORDER Plaintiff s counsel filed a Motion For Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Dkt. No. 25) on June 25, 2013. Judgment was entered in favor of Plaintiff on March 30, 2010, remanding this action to the Commissioner under sentence four of 42 U.S.C. § 405(g). Upon remand from the Appeals Council, the Commissioner issued a February 5, 2013, decision finding in favor of Plaintiff and determining that Plaintiff was disabled. Plaintiff s counsel received a letter from the Social Security Administration notifying them that $15,068.75 had been withheld by the agency for the payment of attorney s fees. $6,000.00 has been requested and paid to plaintiff s counsel from the fees withheld under 406 1 The Court has been informed by Defendant that on February 14, 2013, Carolyn W. Colvin became the Acting Commissioner of Social Security. Pursuant to Rule 25 (d) of the Federal Rules of Civil Procedure, Carolyn W. Colvin is automatically substituted for Michael J. Asture as the defendant in this action. Thus, this suit will proceed with this substitution in effect. See 42 U.S.C. Sec. 405 (g) ( Any action instituted in accordance with this subsection shall survive notwithstanding any change in the person occupying the office of Commissioner of Social Security or any vacancy in such office. ) 1 (b). $6,563.70 had been previously paid for EAJA fees. This letter indicates that the $15,068.75 amount represents 25% of a $60,275.00 past-due benefits award to Plaintiff. Attorney fees are awardable under 42 U.S.C. § 406(b)(1) when a social security claimant is awarded disability following a remand from a federal district court. Barnhart, 450 F.3d 493, (10th 496 Cir. 2006). benefits McGraw v. In such circumstances, the fourteen-day period running from the date of judgment under Fed.R.Civ.P. 54(d)(2)(B)(i) will have expired and claimants, through counsel, rely on Rule 60(b)(6) to seek such fees well after the expiration of the fourteen-day period. at 505. award Id. The McGraw Court noted, however, that [a] motion for an of reasonable fees under time benefits. § of Id. 406(b)(1) the The should Commissioner s decision awarding be filed within a decision awarding benefits language referenced by the McGraw Court necessarily includes not only the favorable decision on disability, but the actual award of pastdue benefits. within a Plaintiff s counsel is entitled to file her motion reasonable benefits amount. time of being informed of the past-due Based on the record before it, the Court finds the motion timely. The Court finds it appropriate to authorize Plaintiff s counsel to file her § 406(b)(1) motion for attorney fees following the receipt of the June 19, 2013 letter notifying counsel of plaintiff s award. Plaintiff s counsel has moved the Court to approve an attorney fee award under 42 U.S.C. § 406(b)(1) in the amount of $9,068.75 for counsel s representation of Plaintiff before the Court. Counsel s requested fees do not exceed either the amount contracted for in the parties contingency agreement or the 25% limitation of section 406(b). Plaintiff has not presented any 2 objection to Plaintiff s counsel s request for fees in the amount of $9,068.75. The Commissioner has filed an informative response on the various points of law to be considered, and appears to question the amount of the fee. The Court has conducted an independent review of the record, including the contingency-fee contract between counsel and Plaintiff, and counsel s documented time records, and concludes counsel s motion is timely and that the requested attorney fee amount of $9,068.75 is reasonable under the facts and circumstances of this case given the nature and quality of the representation and the results achieved. See Gisbrecht v. Barnhart, 535 U.S. 789, 807-809 (2002); see also Wren v. Astrue, 525 F.3d 931, 937 (10th Cir. 2008)( the 25% limitation of fees for court representation found in § 406(b) is not itself limited by the amount of fees awarded by the Commissioner ). Consequently, Plaintiff s counsel s Motion For Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Dkt. No. 25) is granted in the amount of $9,068.75. Pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986), Plaintiff's counsel is directed to refund to Plaintiff the smaller amount of fees ($6,563.70) previously awarded under the Equal Access to Justice Act ( EAJA ), 28 U.S.C. § 2412(d). This refund is for the full EAJA amount, without any withholding, offset, or deduction. IT IS SO ORDERED this 17th day of September, 2013. 3
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