Opinion
7:17-CV-43 (WLS)
10-24-2023
T.D., Plaintiff, v. Commissioner of Social Security, Defendant.
RECOMMENDATION
THOMAS Q. LANGSTAFF, UNITED STATES MAGISTRATE JUDGE
This Social Security appeal is presently before the Court on Plaintiff's Motion for Attorney's Fees. (Doc. 43). The Court entered an order reversing the Commissioner's decision in this matter and remanding it to the administrative level for further proceedings. (Doc. 17). On remand, Plaintiff was awarded $85,965.90 in past-due benefits from the Commissioner. (Doc. 432 at 3). Plaintiff's counsel previously received attorney's fees under the Equal Access to Justice Act (EAJA) in the amount of $7,966.00. (Doc. 40). Plaintiff's counsel now requests attorney's fees in the amount of $21,491.48 for their 48.57 hours of work under 42 U.S.C. § 406(b), less the EAJA award previously granted, for a total award of $13,525.48. The Commissioner has filed no response to Plaintiff's Motion.
Fee Reasonableness
In Social Security cases, prevailing parties may be awarded attorney's fees as part of the judgment, “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). Attorney's fees pursuant to § 406(b) may be awarded “where the district court remands the case to the Commissioner of Social Security for further proceedings, and the Commissioner on remand awards the claimant past-due benefits.” Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (per curiam) (11th Cir. 2006).
In Gisbrecht v. Barnhart, 535 U.S. 789 (2002), the Supreme Court of the United States held that contingency fees agreements, such as the one in this case, are permissible so long as the fee does not exceed 25% of the claimant's back benefits. However, the Court also held that “§ 406(b) calls for court review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases.” Id. at 807. Issues to consider when assessing reasonableness include, whether the attorney's work was substandard, whether the attorney was responsible for any delays (and would thereby profit from the accumulation of additional back benefits during the delay), or whether the benefits are large in comparison to the amount of time counsel spent on the case. Id. at 808 (citations omitted).
In this case, Plaintiff's counsel requests $21,491.47, which does not exceed 25% of Plaintiff's past-due benefits. Counsel requests compensation for approximately 48.57 hours of attorney services. The Commissioner has not contested the reasonableness of this fee, and it does not appear to the Court that the fee requested by Plaintiff is patently disproportionate to the amount of time invested by Plaintiff's counsel. There is also no indication the performance of Plaintiff's counsel was substandard, nor is there any indication that Plaintiff's counsel was responsible for any undue delay. Accordingly, the Court finds the fee of $21,491.47 to be a reasonable sum in this case.
Plaintiff's calculations rounded up to the nearest cent when calculating 25% of Plaintiff's back benefits. Thus, the total of $21,491.48 nominally exceeds the statutory maximum. The Court adjusts the total award to $21,491.47 to ensure the fees awarded to Plaintiff's counsel do not violate the statutory cap.
Deduction of Prior EAJA Fees
Fee awards may be made under both § 406(b) and the EAJA, “but the claimant's attorney must refund to the claimant the amount of the smaller fee, up to the point the claimant receives 100 percent of the past-due benefits.” Gisbrecht, 535 U.S. at 789. “[T]he attorney may choose to effectuate the refund by deducting the amount of an earlier EAJA award from his subsequent 42 U.S.C. § 406(b) fee request.” Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1274 (11th Cir. 2010).
Here, Plaintiff requests the Court deduct $7,966.00 from the total contingency fee to account for the previously awarded EAJA fees in this case. The Court accepts this as a reasonable means of harmonizing the two statutory awards and reduces the amount Plaintiff's counsel may recover from $21,491.47 to $13,525.47.
Accordingly, it is RECOMMENDED that Plaintiff's Motion for Attorney's Fees (Doc. 43) be GRANTED, and that Plaintiff's counsel be authorized to recover $13,525.47 out of Plaintiff's past-due benefits.
Pursuant to 28 U.S.C. § 636(b)(1), the parties may serve and file written objections to this Recommendation, or seek an extension of time to file objections, WITHIN FOURTEEN (14) DAYS after being served with a copy thereof. The district judge shall make a de novo determination as to those portions of this Recommendation to which objection is made; all other portions of this Recommendation may be reviewed by the district judge for clear error. Any objection is limited in length to TWENTY (20) PAGES. See M.D. GA. L.R. 7.4.
The parties are hereby notified that, pursuant to Eleventh Circuit Rule 3-1, “[a] party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions if the party was informed of the time period for objecting and the consequences on appeal for failing to object. In the absence of a proper objection, however, the court may review on appeal for plain error if necessary in the interests of justice.”
SO RECOMMENDED.