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Deskins v. Colvin

United States District Court, E.D. Tennessee, Knoxville

November 8, 2016

BRIAN EDWARD DESKINS, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION

         This case is before the undersigned pursuant to 28 U.S.C. § 636(b), Rule 72(b) of the Federal Rules of Civil Procedure, and the rules of this Court for a report and recommendation regarding disposition of Plaintiff's Attorney's Motion for an Award of Attorney Fees Under 42 U.S.C. § 406(b) [Doc. 26]. Plaintiff's counsel moves the Court to award $27, 816.00 in attorney's fees for work performed on behalf of the Plaintiff for Title II Social Security benefits. [Id.].

         I. BACKGROUND

         The Plaintiff filed a Motion for Summary Judgment and Memorandum in Support [Docs. 13 & 14] on October 19, 2014. The parties subsequently filed a Joint Motion for Entry of Judgment with Remand Under Sentence Four of 42 U.S.C. § 405(g) [Doc. 18] on December 16, 2014. In the joint motion, the Commissioner moved the Court to reverse the Commissioner's decision, and the parties agreed that the case should be remanded for a new administrative law judge to: 1) further develop the record and issue a new decision, with consideration of evidence from the current record; 2) provide a mental impairment evaluation of Plaintiff's affective disorder at step two of the sequential evaluation process, including a “B Criteria” assessment under Listing Section 12.00; 3) reassess and further evaluate Plaintiff's credibility; 4) further evaluate Plaintiff's physical and mental residual functional capacity; and 5) obtain evidence from a vocational expert to clarify the effects of the assessed limitations on the potential occupational base. On January 8, 2015, the District Court granted [Docs. 19 & 20] the parties' joint motion and remanded the case to the Commissioner for further proceedings.

         On February 5, 2015, the Plaintiff filed an Application for Attorney Fees Under the Equal Justice Act (“EAJA”) [Doc. 21] requesting $4, 6173.00 in attorney's fees for 25.65 attorney work performed hours, $400.00 in costs, and $19.08 in expenses. By Report and Recommendation [Doc. 23] filed on February 19, 2015, the Court found that the Plaintiff was entitled to an award of EAJA fees and that the requested amount was reasonable. The District Court adopted the recommendation and on March 12, 2015, ordered [Doc. 24] an award of attorney's fees in the amount requested.

         The instant motion now before the Court was filed on June 9, 2016, and seeks an additional award of attorney's fees pursuant to 42 U.S.C. § 406(b).

         II. POSITIONS OF THE PARTIES

         Plaintiff's counsel requests approval to charge attorney's fees pursuant to 42 U.S.C. § 406(b) based on his contingency fee agreement with the Plaintiff. [Doc. 26]. Counsel asserts that the Plaintiff was awarded $111, 264.00 for past-due Social Security benefits and that the Plaintiff contracted with counsel to pay twenty-five percent of past-due benefits which equals $27, 816.00 in attorney's fees. [Id. at 2, 5-6]. Counsel argues that this amount is reasonable and should be upheld pursuant to Gisbrecht v. Barhhart, 535 U.S. 789 (2002). [Id. at 5-9].

         The Commissioner does not object to the fee request, but responds that the Court nonetheless must independently determine whether the requested amount is reasonable. [Doc. 27 at 2].

         III. ANALYSIS

         Section 406(b) permits courts to award “a reasonable [attorneys'] fee . . . not in excess of 25 percent, ” payable “out of . . . [the claimant's] past-due benefits” when a claimant secures a favorable judgment. 42 U.S.C. § 406(b)(1)(A). Accordingly, three conditions must be met before 406(b) fees will be awarded:

1. The Court must have rendered a judgment favorable to the Plaintiff;
2. The Plaintiff must have been represented by counsel; and
3. The Court must find that the fee is reasonable and not in excess of twenty-five (25) percent of the total past-due benefits ...

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