Bailey v. Social Security Administration, No. 6:2011cv00053 - Document 31 (E.D. Okla. 2014)

Court Description: OPINION AND ORDER by Judge Frank H. Seay granting 29 MOTION for Attorney Fees under 42 U.S.C. 406b filed by Larita G. Bailey in the amount of $10,000.00. (adw, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA LARITA G. BAILEY, ) ) ) ) ) ) ) ) ) ) Plaintiff, v. CAROLYN W. COLVIN1, Commissioner Social Security Administration Defendant. No. CIV-11-053-FHS-SPS OPINION AND ORDER Plaintiff s counsel filed a Motion For Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Dkt. No. 29) on May 1, 2014. Judgment was entered in favor of Plaintiff on September 24, 2012, remanding this action to the Commissioner under sentence four of 42 U.S.C. § 405(g). On remand, the Commissioner issued a November 26, 2013, decision finding in favor of Plaintiff with a disability beginning in April 2008. On April 24, 2014, the plaintiff received a Notice of Award letter. Attorney fees are awardable under 42 U.S.C. § 406(b)(1) when a social 1 security claimant is awarded disability benefits 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. Astrue 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 following a remand from a federal district court. Barnhart, 450 F.3d 493, (10th 496 Cir. 2006). 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 benefits. fees time under of § 406(b)(1) the should Commissioner s be filed decision within a awarding Id. The Court finds it appropriate to authorize Plaintiff s counsel to file his § 406(b)(1) motion for attorney fees following the receipt of the April 24, 2014, Notice of Awards. Plaintiff filed his Motion for Attorney fees on May 1, 2014. 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 his motion within a reasonable time of being informed of the past-due benefits amount. The court finds the Plaintiff s Motion is timely filed. 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 $10,000.00 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 $10,000.00. The Commissioner has filed an informative response on the various points of law to be considered, but does not challenge the reasonableness of the 2 requested 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 $10,000.00 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. 27) is granted in the amount of $10,000.00. Pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986), Plaintiff's counsel is directed to refund to Plaintiff previously awarded the under smaller the ( EAJA ), 28 U.S.C. § 2412(d). amount, without any amount Equal of Access fees to ($6,619.00) Justice Act This refund is for the full EAJA withholding, offset, or deduction. It is so ordered this 15th day of May, 2014. 3

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