Kennett v. Social Security Administration, No. 6:2008cv00329 - Document 28 (E.D. Okla. 2011)

Court Description: OPINION AND ORDER by Judge Frank H. Seay granting 26 Motion for Attorney Fees(dma, Deputy Clerk)

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Kennett v. Social Security Administration Doc. 28 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA THOMAS A. KENNETT, ) ) ) ) ) ) ) ) ) ) Plaintiff, v. MICHAEL ASTRUE, Commissioner Social Security Administration Defendant. No. CIV-08-329-FHS-KEW OPINION AND ORDER Plaintiff s counsel filed a Motion For Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Dkt. No. 26) on February 18, 2011. Judgment was entered in favor of Plaintiff on October 14, 2009, remanding this action to the Commissioner under sentence four of 42 U.S.C. § 405(g). On remand, the Commissioner found in favor of Plaintiff and determined Plaintiff was entitled to benefits between August 2004 and November 2009. On January 17, 2011, a Notice of Award was issued in favor of Plaintiff with an award of back benefits in the amount of $63,216.00. 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. Id. 1 Dockets.Justia.com at 505. award The McGraw Court noted, however, that [a] motion for an of fees reasonable under time benefits. of § 406(b)(1) the should be Commissioner s filed within decision a awarding Id. 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 January 17, 2011, Notice of Award containing the calculation of past-due benefits. 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 the Notice of Award. Counsel s motion filed on February 18, 2011 - thirty-two days from the January 17, 2011, issuance of the Notice of Award and twenty-five days from counsel s receipt of the Notice of Award on January 24, 2011 - is therefore timely. 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 $15,804.00 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 $15,804.00. The Commissioner has filed an informative response on the various points of law to be considered, but has declined to take reasonableness of counsel s fee request. any response or objection. The a position on the Plaintiff has not filed Court has conducted an independent review of the record, including the contingency-fee 2 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 $15,804.00 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). Consequently, Plaintiff s counsel s Motion For Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Dkt. No. 26) is granted in the amount of $15,804.00. 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 amount Equal of Access fees to ($6,610.60) Justice ( EAJA ), 28 U.S.C. § 2412(d). It is so ordered this 9th day of March, 2011. 3 Act

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