Brinkley v. Commissioner of Social Security Administration

• Court: District Court, W.D. Oklahoma
• Decided: March 5, 2025
• Docket: 5:23-cv-00112
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

CLYDE BRINKLEY, ) ) Plaintiff, ) ) v. ) Case No. CIV-23-112-D ) MICHELLE KING, ) Acting Commissioner of ) Social Security, ) ) Defendant. )

ORDER Before the Court is Plaintiff’s Motion for Attorney Fees Under 42 U.S.C. § 406(b) [Doc. No. 23]. Plaintiff’s attorney, Miles L. Mitzner, seeks approval of a fee award in the amount of $21,632.25, to be paid out of Plaintiff’s award of past-due benefits in accordance with a 25-percent contingency fee agreement between him and Plaintiff. Defendant has filed a Response [Doc. No. 25]. The Commissioner takes no position regarding the Motion, but reminds the Court of its obligation to determine a reasonable attorney fee and Mr. Mitzner’s obligation to refund to Plaintiff the lesser of any § 406(b) award or the amount previously awarded under the Equal Access to Justice Act (“EAJA”). Upon consideration of the Motion in light of Gisbrecht v. Barnhart, 535 U.S. 789 (2002), and Wrenn v. Astrue, 525 F.3d 931 (10th Cir. 2008), the Court finds that Plaintiff’s attorney may recover a reasonable fee for the representation of Plaintiff in this case up to the statutory limit of 25% of past-due benefits, provided the attorney refunds the lesser EAJA fee award. See Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986); see also Order Awarding Att’y Fees [Doc. No. 20]. The supporting documents with the Motion, as well as the case record, show a total of 39.15 hours of legal services performed for Plaintiff’s

representation in this case (35.35 attorney hours and 3.80 paralegal hours), which resulted in a favorable judicial decision. After remand, Plaintiff was determined to be entitled to benefits and was awarded a past-due amount of $86,529.00. The Motion has been timely filed within the deadline previously set by the Court. See 12/27/2024 Order [Doc. No. 22]. Under the circumstances presented, the Court finds that the requested amount of $21,632.25 represents a reasonable fee award for the work done by Plaintiff’s attorney in

this case, taking into account the contingent-fee agreement and other pertinent factors. See Gisbrecht, 535 U.S. at 808.1 The amount does not exceed 25% of Plaintiff’s award of benefits obtained by reason of the Judgment and Order of Remand [Doc. No. 16] entered June 8, 2023, and fairly accounts for the contingency nature of the representation and the delay in receiving payment. The Court finds that $21,632.25 represents a reasonable fee

award under § 406(b). IT IS THEREFORE ORDERED that the Motion for Attorney Fees Under 42 U.S.C. § 406(b) [Doc. No. 23] is GRANTED, as set forth herein. The Court approves an award of attorney fees under 42 U.S.C. § 406(b) to be paid by Defendant to attorney Miles

1 Plaintiff’s counsel expended 35.35 hours on this case, not including work performed by paralegals and other staff. See Pl.’s Mot., Ex. 3 [Doc. No. 23-3] at 2. Given the requested fee of $21,632.25, this translates to an effective hourly rate of approximately $600.12 ($21,632.25 minus $418 in paralegal fees, then divided by 35.35 hours of attorney time). This effective hourly rate is within the bounds established by Gracey v. Astrue, No. CIV-05-823-HE, Doc. No. 38 (W.D. Okla. Dec. 5, 2008). This effective hourly rate is also in line with the rate Plaintiff’s counsel charges in non-contingency fee cases. See Pl.’s Mot. at 6 (noting that Mr. Mitzner charges $650 per hour in non-contingency fee matters). L. Mitzner of Mitzner Law Firm, PLLC in the amount of $21,632.25. Upon payment of this amount, Plaintiff's attorney shall promptly refund to Plaintiff Clyde Brinkley the amount of the previous EAJA fee award of $7,600.00. IT IS SO ORDERED this 5" day of March, 2025.

Nd Q. TIMOTHY D. DeGIUSTI Chief United States District Judge