United States District Court, D. South Dakota, Southern Division
LORI L. PORTER, Plaintiff,
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.
ORDER GRANTING SUPPLEMENTAL MOTION FOR AWARD OF
ROBERTO A. LANGE UNITED STATES DISTRICT JUDGE
Lori L. Porter filed a Supplemental Motion for Award of
Attorney Fees pursuant to 42 U.S.C. § 406(b). Doc. 26.
Plaintiff was the successful party in this litigation. Doc.
26-2 at 3. The Commissioner does not oppose Plaintiff's
motion, but asks the Court to determine if the attorney fee
award sought is reasonable. Doc. 28.
February 2, 2016, Plaintiff filed this case seeking judicial
review of the decision of the Commissioner of Social Security
denying her application for disability benefits. Doc. 1.
Plaintiff filed a Motion for Summary Judgment, Doc. 9, and
supporting memorandum, Doc. 10. Thereafter, on July 22, 2016,
Defendant filed an Unopposed Motion to Remand invoking the
fourth sentence of 42 U.S.C. § 405(g), and represented
that Plaintiff did not oppose the request. Doc. 12. This
Court then remanded the case to the Commissioner of Social
Security under the fourth sentence of 42 U.S.C. § 405(g)
to conduct further administrative proceedings on
Plaintiff's claims and denied without prejudice
Plaintiff's Motion for Summary Judgment as moot in light
of the remand for further proceedings. Doc. 14.
then filed a Motion for Award of Attorney Fees pursuant to 42
U.S.C. § 406(b), Doc. 23, requesting that the motion be
held in abeyance until any final determination by Defendant
on entitlement to benefits. This Court held that
Plaintiff's request for attorney fees was quite timely
and indeed premature under 406(b). Doc. 24. Plaintiff now
files a timely Supplemental Motion for Award of Attorney
Fees. Doc. 26.
Whenever a court renders a judgment favorable to a claimant
under this subchapter who was represented before the court by
an attorney, the court may determine and allow as part of its
judgment a reasonable fee for such representation, not in
excess of 25 percent of the total of the past-due benefits to
which the claimant is entitled by reason of such judgment,
and the Commissioner of Social Security may . . . certify the
amount of such fee for payment to such attorney out of, and
not in addition to, the amount of such past-due benefits. . .
42 U.S.C. § 406(b)(1)(A).
this Court's order remanding the case to the Commissioner
of Social Security, the Commission awarded $61, 760.00 in
past due benefits. Doc. 26-2 at 3. On November 26, 2018, the
Social Security Administration authorized a $10, 000 fee for
the administrative work in this case. Doc. 26 at 2; Doc. 26-2
Court previously awarded attorney fees of $3, 637.15 under 28
U.S.C. § 2412(d), the Equal Access to Justice Act
(EAJA). Docs. 20, 22. This EAJA payment constitutes an offset
against any further award of attorney fees. Docs. 20, 22.
Plaintiff's attorney now seeks an award of an additional
$5, 440.00, which is $15, 440.00, less the $10, 000.00 paid
to Plaintiff's attorney at the administrative level. Doc.
26 at 3. Plaintiff's attorney seeks this amount
consistent with the fee agreement with his client, pursuant
to 42 U.S.C. § 406(b), which agreement called for a
contingent fee of 25 percent. Plaintiff's attorney would
then return or credit back the Plaintiff the prior EAJA fees
of $3, 637.15. See McGraw v. Barnhart, 450 F.3d 493,
497 n.2 (10th Cir. 2006) (holding that “it is more
appropriate for counsel to make the required refund to his
client, rather than to delegate that duty to the
Commissioner.”). The Commissioner declines to assert a
position on reasonableness of the Plaintiff's request.
determining the reasonableness of a fee award, a district
court “must first consider the fee agreement, testing
it for reasonableness; then reduce the fees based on the
character of the representation and results achieved, whether
counsel was responsible for delay, and whether the benefits
achieved were large in comparison to the time expended by
counsel” and then it “may consider the hourly
rate.” Jones v. Berryhill, 699 Fed.Appx. 587,
588 (8th Cir. 2017) (per curiam). In this case,
Plaintiff's attorney has demonstrated that the fee sought
is reasonable for the services rendered. Plaintiff agreed to
a 25 percent contingent fee in a written fee agreement. Doc.
26-1. The agreement stated, “I understand that the
total fee [if past-due benefits are awarded] could amount to
several thousand dollars or several hundred dollars per hour
on an hourly basis.” Doc. 26-1. Additionally, the
agreement stated, “I will not be charged a fee if we
lose.” Doc. 26-1. The case involved both physical and
mental impairments and multiple appeals issues. Doc. 26-2 at
3. Plaintiff's attorney represented the plaintiff with an
appeal to the Appeals Council, then in federal court, and
then again administratively at the hearing where she was
found disabled. Doc. 26 at 3. Plaintiff was awarded
substantial past-due benefits. Additionally, when dividing
the request of $5, 440.00 by the 19.45 hours equals $279.69
per hour, which is a reasonable hourly fee when considering
the risk associated with the contingent fee. The fee sought
is reasonable considering all the case-specific factors and
there are no reasons apparent to the Court to reduce the fee.
it is hereby
that the Supplemental Motion for Award of Attorney Fees
Pursuant to 42 U.S.C. § 406(b), Doc. 31, is granted such
that Plaintiff's attorney shall receive an additional $5,
440.00 out of Plaintiff's benefits as fees. It is further
that Plaintiff will receive or be credited for the EAJA fee
of $3, 637.15 previously paid, for a net additional fee of
$1, 802.85 to be ...