Pollard v. Social Security Administration, No. 6:2008cv00434 - Document 32 (E.D. Okla. 2011)
Court Description: OPINION AND ORDER by Judge Frank H. Seay granting 30 Motion for Relief(trl, Chambers)
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Pollard v. Social Security Administration Doc. 32 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA STACEY J. POLLARD, ) ) ) ) ) ) ) ) ) ) Plaintiff, v. MICHAEL ASTRUE, Commissioner Social Security Administration Defendant. No. CIV-08-434-FHS-KEW OPINION AND ORDER Before Counsel s the Court Motion for for its Relief consideration Pursuant is to 60(b)(6)(Dkt. No. 30) filed on March 22, 2011. Plaintiff s Fed.R.Civ.P. Plaintiff s counsel seeks relief which would allow him to file his motion for attorney fees under 42 U.S.C. § 406(b)(1) within sixty days following his receipt of a Notice of Award issued by the Social Security Administration. The Court finds Plaintiff s counsel is entitled to the requested relief. 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, such as Plaintiff and her counsel herein, rely on Fed.R.Civ.P. 60(b)(6) to seek such fees well after the expiration of the fourteen-day period. Id. at 505. The McGraw Court noted, 1 Dockets.Justia.com however, that [a] motion for an award of fees under § 406(b)(1) should be filed within a reasonable time of the Commissioner s decision awarding benefits. Id. On March 31, 2010, this Court remanded this action to the Commissioner for further administrative sentence four of 42 U.S.C. § 405(g). 2011, Plaintiff and her counsel action pursuant to On or about February 25, received notification of a favorable decision from the Administrative Law Judge determining her to be disabled since September 15, 2004. Plaintiff s counsel filed under the instant motion seeking relief Fed.R.Civ.P. 60(b)(6) less than one month later on March 22, 2011. to Plaintiff s counsel, the amount of retroactive According benefits awardable to Plaintiff has not been calculated and a Notice of Award has not been issued by the Commissioner. circumstances, the Court finds it appropriate Under these to authorize Plaintiff s counsel to file his § 406(b)(1) motion for attorney fees following his receipt of a 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. Thus, Plaintiff s counsel is entitled to file his motion for attorney fees within a reasonable time of the receipt of the Notice of Award. Plaintiff s Counsel s Motion for Relief Pursuant to Fed.R.Civ.P. 60(b)(6) (Dkt. No. 30) is granted and Plaintiff s counsel is authorized to file his motion for attorney fees under § 406(b)(1) within sixty days of his receipt of the Notice of 2 Award containing the calculation of Plaintiff s benefits. It is so ordered this 6th day of April, 2011. 3 past-due
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