Smith v. Social Security Administration, No. 6:2010cv00059 - Document 28 (E.D. Okla. 2013)
Court Description: OPINION AND ORDER by Judge Frank H. Seay granting 25 Motion for Attorney Fees(trl, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA BRENDA J. SMITH, Plaintiff, v. CAROLYN W. COLVIN1, Commissioner Social Security Administration Defendant. ) ) ) ) ) ) ) ) ) ) No. CIV-10-059-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 April 12, 2013. was entered in favor of Plaintiff on September Judgment 29, 2011, remanding this action to the Commissioner under sentence four of 42 U.S.C. § 405(g). On remand, the Commissioner issued a February 28, 2012, decision finding in favor of Plaintiff and determining Supplemental that Plaintiff Security Income was entitled (SSI) to benefits disability for a period and of disability beginning on March 18, 2007. On February 4, 2013, Plaintiff s counsel received a letter from the Social Security Administration notifying them that $5,352.00 had been withheld by 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 the agency for the payment of attorney s fees making the total amount withheld for attorney fees $11, 352.00. ($6,000 previously paid for 42 U.S.C. § 406(a) fees and $5,352.00 being withheld in anticipation of § 406(b) fees). $11,352.00 amount This letter indicates that the represents 25% of a $45,408.00 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. benefits McGraw v. 2006). 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 § 406(b)(1) the should be Commissioner s filed decision within a awarding Id. The Court finds it appropriate to authorize Plaintiff s counsel to file her § 406(b)(1) motion for attorney fees following notifying the counsel receipt of of the the February withheld corresponding past-due benefits amount. fee 4, 2013, amount letter and the The decision awarding benefits language referenced by the McGraw Court necessarily includes not only the favorable decision on disability, but the actual award of past-due benefits. Plaintiff s counsel is entitled to file her motion within a reasonable time of being informed of the past-due benefits amount. before it, the Court finds the motion timely. 2 Based on the record 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 $10,200.00 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). Neither the Commissioner nor the Plaintiff have presented any objection to Plaintiff s counsel s request for fees in the amount of $10,200.00. The Commissioner has filed an informative response on the various points of law to be considered, but does not challenge the reasonableness of the requested objection. fee. Plaintiff has not filed any response or The Court has conducted an independent review of the record, including the contingency-fee contract between counsel and Plaintiff, concludes and counsel s counsel s motion documented is timely and time that records, the and requested attorney fee amount of $10,200.00 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 $10,200.00. Pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986), Plaintiff's counsel is directed to refund to previously Plaintiff awarded the under smaller the amount Equal 3 of Access fees to ($4,919.90) Justice Act ( EAJA ), 28 U.S.C. § 2412(d). amount, without any This refund is for the full EAJA withholding, offset, or deduction. It is so ordered this 15th day of May, 2013. 4
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