United States District Court, W.D. Arkansas, Texarkana Division
SAMUEL D. RAYBURN PLAINTIFF
ANDREW SAUL Commissioner, Social Security Administration DEFENDANT
BARRY BRYANT, U.S. MAGISTRATE JUDGE.
now before the Court is Plaintiff's Motion for Attorney
Fees Pursuant to 42 U.S.C. § 406(b). ECF No. 24. The
Motion and supporting documents were filed on July 16, 2019.
Id. On July 17, 2019, Defendant responded to
Plaintiff's Motion. ECF No. 25. This matter is now ripe
November 4 2014, Plaintiff appealed to the Court from the
Commissioner of the Social Security Administration's
(“SSA”) denial of his request for disability
benefits. ECF No. 1. On July 20, 2015, Plaintiff's case
was reversed and remanded to the SSA for further
administrative review. ECF No. 18.
that remand, Plaintiff was awarded disability benefits. ECF
No. 24. Of the amount awarded, a total of $10, 529.13 of the
back-pay was withheld as attorney's fees. Id.
This amount was withheld pursuant to the fee contract entered
into between Plaintiff and Plaintiff's counsel.
Id. With the current Motion, Plaintiff seeks $10,
529.13 as attorney's fees. Id.
to 42 U.S.C. § 406(b)(1)(A), whenever a court renders a
judgment favorable to a claimant, that court is permitted to
determine and to allow as part of its judgment a reasonable
fee for the representation of the claimant before the court.
This fee must not be in excess of 25 percent of the total
past-due DIB to which the claimant is entitled by reason of
such judgment, and this fee may be taken out of the amount of
the Plaintiff's past-due DIB. See Id. However, a
court is not authorized to award attorney's fees out of a
claimant's past-due SSI. See id.; Bowen v.
Galbreath, 485 U.S. 74, 78 (1988) (holding that a court
is not authorized to award past-due SSI benefits as
attorney's fees under Section 406(b)).
a court is not authorized to approve a fee for time spent in
the representation of the Plaintiff at the agency level.
See 42 U.S.C. § 406(b)(1). It is the
Commissioner's responsibility to award the fees for any
representation before an agency and such fees are not awarded
by the courts. See Pittman v. Sullivan, 911 F.2d 42,
46 (8th Cir. 1990) (holding that “the matter of
attorney's fees for services performed at the
administrative level is committed by § 406(b)(1) to the
responsibility of the Secretary exclusively and such fees may
not be awarded by the courts”). Instead, a
plaintiff's attorney must petition the agency for these
fees. See 42 U.S.C. § 406(a).
determining the reasonableness of a requested fee, the Eighth
Circuit previously determined that the “lodestar”
approach should be applied. See Cotter v. Bowen, 879
F.2d 359, 363 (8th Cir. 1989), abrogated by Gisbrecht v.
Barnhart, 535 U.S. 789 (2002). The lodstar approach for
fee setting states that a reasonable fee is obtained by
multiplying the number of hours reasonably worked on a case
by a reasonable hourly rate. Id. The United States
Supreme Court has, however, abrogated Cotter and
held that the lodestar approach should not be used as the
standard for calculating reasonable attorney's fees.
See Gisbrecht v. Barnhart, 535 U.S. 789, 793 (2002).
the United States Supreme Court held Section 406(b) instructs
courts to use attorney-client contingency fee agreements to
determine the fees to be awarded. Id. at 808. Courts
should utilize these agreements in awarding fees because the
court should not “override customary attorney- client
contingent-fee agreements.” Id. The court is,
however, required to review the reasonableness of fees
yielded by a contingency fee agreement when awarding fees
under Section 406(b). Id. (holding that
“§ 406(b) instructs courts to review for
reasonableness fees yielded by those [contingency-fee]
Plaintiff's attorney asserts he has spent 24.30 hours in
the representation of Plaintiff before this Court. ECF No.
24. The contingency fee agreement between Plaintiff and
Plaintiff's attorney reflects Plaintiff agreed to pay his
attorney 25 percent of the past-due benefits awarded if a
claim is awarded “following an order of remand issued
by the Social Security Administration or a Federal
Court.” Id. Twenty-five percent of the
Plaintiff's past-due benefits is $10, 529.13. A fee in
the amount of $4, 519.80 has been received by the Plaintiff
attorney for work performed at the administrative level. The
Plaintiff's attorney seeks approval before this court for
an attorney fee award of $10, 529.13. ECF No. 24.
the Court's duty to protect the Plaintiff's
disability award against a fee that is substantial enough to
encourage attorney's to accept social Security cases, and
considering the factors listed above, the Court does not
believe that the contingent-fee agreement here or the $10,
529.13 requested by Plaintiff's counsel produces an
“unreasonable fee.” Further, it should be noted
Defendant does not object to Plaintiff's request for
attorney fees, other than to request Plaintiff's counsel
refund the previously awarded attorney fees of $4, 519.80 to
Plaintiff. ECF No. 25.
Court should not simply “rubber-stamp” a
contingency-fee agreement, but rather should ensure that both
the claimant's benefits are protected as well as the
attorney's rights to payment for effective assistance of
counsel. See Mitchell v. Barnhart, 376 F.Supp.2d
916, 923 (S.D. Iowa 2005). Lawyers representing social
security claimants are entitled to be paid reasonable
compensation for their work as much as lawyers performing