Opinion
21-cv-00080
09-04-2024
REBEKAH D. ORT, Plaintiff, v. MARTIN O'MALLEY, Commissioner of the Social Security Administration, Defendant. Date Range # Months Received/Month Entitled/Month Total Received Total Entitled Amount Underpaid
OPINION AND ORDER
JOSEPH S. VAN BOKKELEN, JUDGE
This matter is before the Court on Plaintiff's Attorney's Motion for an Award of Attorney Fees Under 42 U.S.C. § 406(b) [DE 35] filed on August 17, 2024. Plaintiff's counsel requests an award of $22,193.29 in attorney fees after Plaintiff partially prevailed on remand and received benefits. The Commissioner filed a response indicating that he does not object to the requested award.
The Social Security Act allows for a reasonable fee to be awarded for representation at the administrative level, see 42 U.S.C. § 406(a), and representation before a court, see 42 U.S.C. § 406(b). See Culbertson v. Berryhill, 586 U.S. 53, 55 (2019) (quoting Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002)). Under section 406(b)(1), a court may award up to 25% of past due benefits to which the claimant is entitled by reason of a judgment rendered in favor of the claimant. See 42 U.S.C. § 406(b)(1). This twenty-five percent cap applies only to fees for court representation and not to the aggregate fees awarded under Sections 406(a) and 406(b). Culbertson, 586 U.S. at 62. However, an award of EAJA fees under 42 U.S.C. § 2412 offsets an award under § 406(b). Gisbrecht, 535 U.S. at 796.
The Court has jurisdiction over this fee petition pursuant to 42 U.S.C. § 406(b), as the Court remanded this case for further proceedings on May 16, 2022. Plaintiff prevailed on remand, and the SSA sent a Notice of Award on August 6, 2024, indicating that it was awarding benefits beginning August 2016. However, due to a prior decision, benefits had already been paid for July 2018 through February 2020, apparently through a lump sum past due award paid in November 2020, from which $6,000 had been withheld for attorney fees. Additionally, benefits had already been paid for March 2020 through June 2024, though these payments were all approximately $40-$45 too low according to the Notice of Award.
The Court provides the following table (based on data provided in the Notice of Award) to provide some clarity as to benefits actually paid and benefits that should have been paid.
Date Range
# Months
Received/Month
Entitled/Month
Total Received
Total Entitled
Amount
Underpaid
8/2016
11/2016
4
$0
$1,300
$0
$5,200
$5,200
12/2016
11/2017
12
0
1,304
0
15,648
$15,648
12/2017
11/2018
12
0
1,330
0
15,960
15,960
12/2018
11/2019
12
0
1,367
0
16,404
16,404
12/2019
2/2020
3
0
1,389
0
4,167
4,167
3/2020
5/2020
3
1,350
1,389
4,050
4,167
117
6/2020
1
1,349.60
1,389
1,349.60
1,389
39.40
7/2020
11/2020
5
1,350
1,350
6,750
6,750
0
11/2020
Lump Sum
20,446 +6,000 withheld
(26,446)
12/2020
11/2021
12
1,367
1,407
16,404
16,884
480
12/2021
11/2022
12
1,448
1,490
17,376
17,880
504
12/2022
11/2023
12
1,574
1,619
18,888
19,428
540
12/2023
6/2024
7
1,624
1,671
11,368
11,697
329
TOTALS
102 631 60
135 574
32 942 40
Prior to the Notice of Award at issue, Plaintiff received benefits, including money withheld for attorney fees, in the amount of $102,631.60. The Notice of Award indicates that Plaintiff should have instead received $135,769, calculating Plaintiff's past due check to be $24,991.65 with an additional $8,145.75 withheld for attorney fees. This number is slightly off from the Court's calculation of total entitled benefits of $135,574 with past due benefits totaling $32,942.40, which would yield a past-due benefits check of $24,706.80 with $8,235.60 withheld for attorney fees.
Counsel notes that he has already received $9,959.50 under the Equal Access to Justice Act, so if the Court's calculation (or the Agency's calculation in the Notice of Award) is correct, then the § 406(b) award, as the smaller award, would be refunded to Plaintiff, so the small difference between the Court's and the Notice of Award's calculation may not need to be fully resolved.
On the information submitted, the Court is unable to conclude that the requested $22,193.29 is 25% or less of the past due benefits awarded. Counsel provides calculations suggesting that Plaintiff's past due benefits are $88,773.20 It appears that counsel is calculating the entire benefit for March 2020 through June 2023 as part of Plaintiff's past due benefits even though, by the Court's reckoning, only about $2000 was underpaid to Plaintiff during this time. The Court will deny the motion but do so without prejudice so that counsel has an opportunity to better support his position on the amount of Plaintiff's past due benefits.
Accordingly, the Court hereby DENIES without prejudice Plaintiff's Attorney's Motion for an Award of Attorney Fees Under 42 U.S.C. § 406(b) [DE 35].
SO ORDERED.