Opinion
NO. 1:17CV165-JMV
01-21-2021
VICKIE PEEKS PLAINTIFF v. NANCY BERRYHILL, COMMISSIONER OF SOCIAL SECURITY DEFENDANT
ORDER
Before the Court is Plaintiff's second motion for attorney fees pursuant to § 206(b)(1) of the Social Security Act, 42 U.S.C. § 406(b)(1) [28]. Essentially, counsel for Plaintiff seeks an amended award of fees or an additional $3,126.82 from Plaintiff's back benefits for work performed before this Court, having now learned the Social Security Administration ("agency") has approved a fee much smaller than counsel anticipated for counsel's work before that agency. By way of response [29], Defendant points out only that pursuant to this Court's November 9, 2020, order approving $148.63 in fees, payment of any fee in this case is authorized under 42 U.S.C. § 1383(d)(2), not § 406. Additionally, it is notable that the record indicates the instant motion was served on Plaintiff and that no response has been filed by Plaintiff.
By notice dated October 9, 2020, Plaintiff was awarded $45,970.86 in back benefits after a favorable decision by an ALJ following remand to the agency by this Court. Apparently, the agency approved only $2,873.18 in fees for counsel's work before the agency instead of an anticipated $6,000.00.
The Court finds, for the same reasons stated in the Court's October 29, 2020, order (modified only to the extent that the actual amended fee request, $8,619.53, amounts to only approximately 18.75% of the claimant's back benefits), the fee requested here is reasonable.
In that order [24] the Court essentially found the actual fee request, $5,492.71, was reasonable under the facts of the case but that applicable law authorized payment of same under 42 U.S.C. § 1383(d)(2), not § 406. The parties were directed to show cause why the fee request should not be granted under § 1383(d)(2); and by order [27] dated November 9, 2020, the fee was approved under § 1383(d)(2), the Court hearing no objection from any party.
THEREFORE, IT IS ORDERED that Plaintiff's request for an additional $3,126.82 in attorney fees payable from Plaintiff's back benefits is hereby approved pursuant to 42 U.S.C. § 1383(d)(2).
While in her reply [30] Plaintiff does not expressly amend her fee request to seek an award under 42 U.S.C. § 1383(d)(2), for the sake of efficiency the Court construes the reply as an acknowledgment that the foregoing is the appropriate authorizing statutory provision. --------
This 21st day of January, 2021.
/s/ Jane M. Virden
U.S. MAGISTRATE JUDGE