Opinion
Case No. CIV-17-966-G
03-27-2020
ROBERT BEAVER, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.
ORDER
Now before the Court is Plaintiff Robert Beaver's Motion for Attorney's Fees Under 42 U.S.C. § 406(b) (Doc. No. 30), filed through Plaintiff's counsel Miles Mitzner.
On May 15, 2018, the Court entered a Judgment reversing the Commissioner's decision denying Plaintiff's application for disability insurance benefits ("DIB") and remanding the case for further administrative proceedings under the fourth sentence of 42 U.S.C. § 405(g). See J. (Doc. No. 24) at 1. On November 11, 2019, the Social Security Administration issued a favorable decision on Plaintiff's DIB application and found that Plaintiff was entitled to benefits beginning in November 2017. See Pl.'s Mot. Att'y Fees at 2; id. Ex. 2 (Doc. No. 30-2) at 1. The Commissioner's notice shows that Plaintiff is entitled to past-due benefits that 25 percent, or $8197.63, of those past-due benefits has been withheld to be applied toward his attorney's fees for work done in this action. See Pl.'s Mot. Att'y Fees Ex. 2, at 3.
Subsection 406(b) provides:
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 . . . .42 U.S.C. § 406(b)(1)(A). Any such payment must be made "out of, and not in addition to," the past-due benefits owed to the claimant. Id. This subsection "does not displace contingent-fee agreements as the primary means by which fees are set for successfully representing Social Security benefits claimants in court" so long as the agreed-upon amount stays within the statute's "25 percent boundary." Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). For a fee request that lies within this boundary, "the attorney for the successful claimant" still "must show that the fee sought is reasonable for the services rendered." Id.
In his Motion, Plaintiff's counsel requests a fee award of 25 percent of Plaintiff's total past-due benefits, which is the percentage stipulated in the fee agreement between Plaintiff and Plaintiff's counsel. See Pl.'s Mot. Att'y Fees Ex. 1 (Doc. No. 30-1) at 1. The Commissioner has responded that he has no objection to Plaintiff's counsel's request for $8197.63 in fees. See Def.'s Resp. (Doc. No. 31) at 1-2. The Commissioner correctly notes, however, that the Court previously awarded $6000.00 in attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, and that if fees are now awarded pursuant to § 406(b) Plaintiff's counsel must refund the lesser EAJA award to Plaintiff. See id. at 2; Order of July 25, 2018 (Doc. No. 26) at 1-2; McGraw v. Barnhart, 450 F.3d 493, 497 & n.2 (10th Cir. 2006).
Having carefully reviewed the parties' submissions, the Court finds that an award of $8197.63, which the Notice of Award indicates is 25% of the past-due benefit award of $32,790.52, is a reasonable fee award for the work performed in this case in view of the contingent nature of the representation, the applicable attorney-fee agreement, and the results achieved. While before the Court, Mr. Mitzner filed a detailed opening brief, presenting a well-supported argument that the administrative law judge erred in denying Plaintiff's DIB claim. See Doc. No. 17. The Commissioner filed a brief in opposition, which Mr. Mitzner was required to review. See Doc. No. 21; Pl.'s Mot. Att'y Fees Ex. 3 (Doc. No. 30-3) at 3. Mr. Mitzner represents that he spent 34.25 hours litigating Plaintiff's disability case in federal court, which would result in an effective hourly rate of $225.86 with respect to the relevant portion of the requested § 406(b) fee. See Pl.'s Mot. Att'y Fees at 3; id. Ex. 3, at 3; see Gisbrecht, 535 U.S. at 793, 808 (rejecting the "lodestar" method of calculating fee awards under § 406(b) but noting that the district court may consider the hours spent and other factors in contingency-fee cases to help assess "the reasonableness of the fee yielded by the fee agreement"); cf. Harlan v. Colvin, No. CIV-13-477-D, 2015 WL 9295809, at *1 (W.D. Okla. Dec. 18, 2015) (awarding $17,429.22 where the putative rate was between $517.95 and $632.64 per hour). Plaintiff and Mr. Mitzner agreed that the latter may collect attorney's fees for representation before the Court in the amount of the currently pending request. See Pl.'s Mot. Att'y Fees Ex. 1, at 1.
Accordingly, Plaintiff's Motion for Attorney Fees (Doc. No. 30) is GRANTED. Plaintiff's attorney Mr. Miles Mitzner is awarded attorney's fees in the amount of $8197.63, to be paid out of the past-due benefits Plaintiff received by reason of the remand and favorable decision in this case. See 42 U.S.C. 406(b)(1)(A). The Social Security Administration shall pay this amount directly to: Miles Mitzner, P.O. Box 5700, Edmond, Oklahoma 73083. Upon payment, Mr. Mitzner shall promptly refund to Plaintiff the $6000.00 previously awarded under 28 U.S.C. § 2412. See Order of July 25, 2018, at 1-2; McGraw, 450 F.3d at 497 & n.2.
IT IS SO ORDERED this 27th day of March, 2020.
/s/_________
CHARLES B. GOODWIN
United States District Judge