Green v. Commissioner of Social Security

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

COURTNEY GREEN,

Plaintiff,

v. Case No. 8:20-cv-796-AEP

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant. /

ORDER This cause comes before the Court upon Plaintiff’s Unopposed Motion for Attorney’s Fees pursuant to 42 U.S.C. § 406(b) (Doc. 31). On August 27, 2021, this Court entered an Order reversing and remanding the case to the Commissioner under sentence four of 42 U.S.C. § 405(g) (Doc. 25). Upon remand, the Commissioner issued a favorable decision for Plaintiff resulting in an award of disability benefits (see Docs. 31, at 3; 31-3). As a result of the favorable decision, Plaintiff’s counsel now seeks payment of fees in the amount of $6,788.50 pursuant to 42 U.S.C. § 406(b). The Commissioner does not oppose the requested relief. There are three statutory provisions under which attorneys representing claimants in Social Security cases may be compensated: 42 U.S.C. §§ 406(a), 406(b), and 28 U.S.C. § 2412(d). Section 406(a) provides the exclusive avenue for attorneys seeking fees for work done at the administrative level. If a claimant is awarded past- § 406(a)(2)(A) and (B). Section 406(a) caps the fees that may be awarded at twenty- five percent of the past-due benefits awarded or a lesser fixed amount. 42 U.S.C. § 406(a)(2)(A)(ii)(I)–(II). Under 42 U.S.C. § 406(b), when a court renders a judgment

favorable to a Social Security claimant who was represented before the court by counsel, the court may allow a reasonable fee for such representation, not to exceed twenty-five percent of the total past-due benefits to which the claimant is entitled. 42 U.S.C. § 406(b)(1)(A). A plaintiff’s counsel may recover attorney’s fees under both 42 U.S.C. § 406(b) and the Equal Access to Justice Act (“EAJA”), 28 U.S.C.

§ 2412. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). The plaintiff’s attorney must, however, refund to the plaintiff the amount of the smaller fee. Id. The Court previously awarded Plaintiff’s attorney’s fees in the amount of $5,239.80 pursuant to the EAJA, 28 U.S.C. § 2412 (Doc. 30).

The fee agreement entered into by Plaintiff and her counsel states: If I am approved for benefits at or below the level of the first hearing in front of an administrative law judge (ALJ) after the date of this agreement, I agree that the attorney’s fee will be the lesser of 25% of all past due benefits awarded to me, or the dollar limit imposed under federal law at the time benefits are awarded (currently $6,000). The dollar limit is called the cap and it is the most my attorney will be paid if I am approved at or before that hearing. Any attorney’s fee charged must be approved by Social Security or a court.

If I lose at the ALJ hearing and my attorney agrees to appeal and I win my case later, the fee will be 25% of all past due benefits awarded in my case, without any cap. If my attorney appeals my case to Federal Court, I understand that she may be paid fees from the Federal Government for the Court work, but I will still pay her 25% of my back award for the work done at the administrative and court level if win my case as a result of the appeal. (Doc. 31-1). After the disability finding, the Social Security Administration withheld a total of $12,788.50 — 25% of the past due benefits — from Plaintiff’s past-due benefits for possible payment of attorney’s fees in federal court (Docs. 31-

3, at 5). According to Plaintiff’s counsel, the ALJ approved payment of the fixed dollar limit in this case — $6,000 — although the benefits were awarded after a remand and not upon the initial administrative case (Doc. 31, at 3). Upon review of the fee agreement, the Court determines that the agreement contemplates a fee of, at most, 25% of the past-due benefits if those benefits are awarded as a result of an

appeal (Doc. 31-1). Moreover, upon review of the itemization of services rendered by counsel (Doc. 31-2), the Court determines that an award of fees in the amount of $6,788.50 is reasonable and appropriate. However, the Court notes that Plaintiff’s counsel’s calculation of an hourly rate of $269.92 is erroneous because Plaintiff is essentially requesting $12,788.50 in attorney’s fees ($6,000 already awarded

pursuant to the “automatic fee” under 42 U.S.C. § 406(a) (see Doc. 31, at 3) + $6,788.50 requested in the Motion) which, divided by 25.15 hours expended by Plaintiff’s counsel, equals $508.49 per hour. Notwithstanding, in light of the time spent on the case, the requested fee is not so large as to result in a windfall for Plaintiff’s counsel. See Vilkas v. Comm r of Soc. Sec., No. 2:03CV687FTM-29DNF,

2007 WL 1498115, at *2 (M.D.Fla. May 14, 2007) (finding reasonable a § 406(b) fee that amounted to payment of $1,121.86 per hour for attorney’s representation of plaintiff before the court). Plaintiff’s counsel has indicated that she is aware of her obligation to reduce the $6,788.50 sum by the amount of the previous EAJA award of $5,239.80 or refund the EAJA award (Doc. 31, at 4). Accordingly, it is hereby ORDERED: 1. Plaintiff's request for an award of attorney’s fees under 42 U.S.C. § 406(b) (Doc. 31) is GRANTED. 2. Plaintiff's counsel is awarded fees in the amount of $6,788.50 pursuant to 42 U.S.C. § 406(b). DONE AND ORDERED in Tampa, Florida, on this 2nd day of May, 2023. 4, i> 7 ‘ide “ Led. er [ZY ANTHONY E. PORCELLI United Sfates Magistrate Judge

cc: Counsel of Record