Bodine v. Social Security Administration, No. 6:2010cv00142 - Document 28 (E.D. Okla. 2013)
Court Description: OPINION AND ORDER by Judge Frank H. Seay granting 26 Motion for Attorney Fees(trl, Chambers)
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA DAVID SHILOH BODINE, ) ) ) ) ) ) ) ) ) ) Plaintiff, v. MICHAEL ASTRUE, Commissioner Social Security Administration Defendant. No. CIV-10-142-FHS-KEW OPINION AND ORDER On January 7, 2013, Plaintiff s counsel filed a Motion For Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Dkt. No. 26). August 2, 2011, judgment was entered in favor of On Plaintiff remanding this action to the Commissioner under sentence four of 42 U.S.C. § 405(g). On remand, the Commissioner issued a fully favorable decision on March 8, 2012, finding Plaintiff has been under a disability as defined in the Social Security Act since July 23, 2006. On October 29, 2012, a Notice of Award was issued in favor of Plaintiff with an award of back benefits in the amount of $101,387.00. On January 4, 2013, Plaintiff s counsel received the Notice of Award. 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 1 claimants, through counsel, rely on Rule 60(b)(6) to seek such fees well after the expiration of the fourteen-day period. The McGraw Court noted, however, that [a] motion for an at 505. award Id. of fees under reasonable time benefits. Id. of The § 406(b)(1) 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. Thus, the Court finds it appropriate to authorize Plaintiff s counsel to file her1 § 406(b)(1) motion for attorney fees following her receipt of the October 29, 2012, Notice of Award containing the calculation of past-due benefits. regard, the Court notes the diligent efforts In this undertaken by Plaintiff s counsel in attempting to secure a copy of the Notice of Award. As detailed by counsel in the motion, through no fault of counsel or the client, the Notice of Award was not forwarded to counsel until January 4, 2013. Counsel s motion filed on January 7, 2013 - three days from counsel s January 4, 2013, receipt of the Notice of Award - 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 $22,000.00 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). 1 Neither the Commissioner nor the Although the instant attorney fee motion was filed by attorney Gayle L. Troutman, of the firm, Troutman & Troutman, P.C., the Court notes that attorney Steve A. Troutman is the firm s representative signatory to the fee contract with Plaintiff and that the time records submitted in support of this motion reflect that Darren T. Rackley performed most of the legal work in connection with the firm s representation of Plaintiff. 2 Plaintiff have presented any objection to Plaintiff s counsel s request for fees in the amount of $22,000.00. 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. a position on the The Court has conducted an independent review of the record, including the contingencyfee 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 $22,000.00 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). 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 $22,000.00. 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 amount Equal of Access fees to ($6,505.40) Justice ( EAJA ), 28 U.S.C. § 2412(d). It is so ordered this 29th day of January, 2013. 3 Act
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