United States District Court, E.D. Tennessee, Chattanooga
K. LEE UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiff's unopposed motion for approval of
attorney's fees under 42 U.S.C. § 406(b) [Doc. 19].
Plaintiff seeks a fee award in the amount of $5, 000.00.
was denied supplemental security income benefits by the
Commissioner of Social Security
''Defendant''). She appealed that unfavorable
decision, and this Court reversed and remanded the decision
under Sentence Four of 42 U.S.C. § 405(g) finding the
ALJ's violation of the treating physician rule was not
harmless and Plaintiff's claim was remanded to the
Commissioner for compliance with the treating physician rule
and proper consideration of the treating physician's
opinion [Docs. 14, 17, & 18].
remand, a second administrative hearing was conducted and a
fully favorable decision for Plaintiff by an ALJ ensued and
Plaintiff was awarded past-due benefits in the amount of $52,
222.00 [Docs. 19-1, Page ID # 553; 19-4]. Plaintiff was
represented on a contingency fee agreement, pursuant to which
Plaintiff's counsel would receive no more than 25% of any
past-due benefits award to Plaintiff as a result of her
claims [Doc. 19-1, Page ID # 553 & Doc. 19-3, Page ID #
561]. Further, under 42 U.S.C. § 406(a) and (b),
Plaintiff's attorneys are allowed to request the combined
total amount of 25 percent of past-due benefits awarded to
Plaintiff, $13, 055.50 [Doc. 19-1, Page ID # 553; Doc. 20, Page
ID #564]. The response of Defendant states that during an
administrative proceeding on June 13, 2016, before the Social
Security Administration (“SSA”), a representative
for Plaintiff requested fees of $8, 000.00 pursuant to 42
U.S.C. § 406(a) [Doc. 19-1, Page ID # 553; Doc. 20, Page
ID # 564]. The parties agree that the requested fee of $8,
000.00 was approved by the Commissioner, and Defendant states
this sum was paid in August 2016 [Doc. 19-1, Page ID #552-53;
Doc. 20, Page ID #564]. Plaintiff now moves for an award of
$5, 000.00in order to recover nearly the full
contingency amount [Doc. 19-1, Page ID # 553].
support of her motion, Plaintiff has submitted a brief in
support and documentation including an itemized statement and
description of services in support of request for 406(b)
fees, contingency fee contract between Plaintiff and counsel,
and notice of award of $52, 222.00 by SSA [Docs. 19, 19-1,
19-2, 19-3, & 19-4]. Defendant filed a response stating
Defendant does not oppose the motion for fees [Doc. 20].
Social Security Act allows a claimant to receive a reasonable
attorney's fee, but no more than 25% of his past-due
benefits, when he receives a favorable judgment. 42 U.S.C.
§ 406(b)(1). A judgment ordering either the award of
benefits or a remand may be considered
''favorable'' within the meaning of the
statute, so long as the claimant is awarded benefits
''by reason of'' the judgment. Id.;
see also Bergen v. Comm'r of Soc. Sec., 454 F.3d
1273, 1277 (11th Cir. 2006).
award under § 406(b) differs from an EAJA award, which
uses the ''lodestar'' concept to set a
reasonable hourly rate for fees. Rodriquez v. Bowen,
865 F.2d 739, 743-44 (6th Cir. 1989). The percentage-based
fee award was designed to ''assure adequate
compensation'' to the attorney and
''encourage attorney representation'' by
taking into account the inherent risk in pursuing an
uncertain claim. Id. at 744, 746. The Supreme Court
addressed the interplay of contingent-fee agreements and fee
awards under ' 406(b) holding that nothing in the text or
history of § 406(b) ''reveals a design to
prohibit or discourage attorneys and claimants from entering
into contingent fee agreements.'' Gisbrecht v.
Barnhart, 535 U.S. 789, 805 (2002) (quotation omitted).
The Court explicitly rejected the lodestar method for
calculating fees under ' 406(b), but noted courts must
review contingent-fee agreements for reasonableness, and
''the attorney for the successful claimant must show
that the fee sought is reasonable for the services
rendered.'' Id. at 807. A court should not
approve a contingency fee if it results in a windfall to the
attorney. Id. at 808.
assessing the reasonableness of a fee request, courts should
consider whether a fee agreement has been executed between
the claimant and the attorney. Bowen, 865 F.2d at
746. If so, the court should consider the timing of the
agreementCi.e., whether it was executed before litigation
commenced or after victory was already certain. See
Damron v. Comm'r of Soc. Sec., 104 F.3d 853, 856-57
(6th Cir. 1997). The court should also consider the
agreement's terms. Rodriquez, 865 F.3d at 746.
If the agreement states the attorney will be paid a certain
percentage within the statutory range, it is entitled to a
rebuttable presumption of reasonableness. Id. A
deduction from the amount specified by agreement should
generally be made only when the claimant's counsel was
ineffective or unduly delayed the litigation or where the
award would be a Awindfall" because of an Ainordinately
large benefit award" or Aminimal effort expended."
light of these principles, the Court FINDS the fee request is
reasonable. The request is supported by a contingency fee
agreement that was executed when Plaintiff retained counsel,
and is therefore entitled to a rebuttable presumption of
reasonableness. Plaintiffs counsel was effective in that
Plaintiff prevailed on the issue brought before the Court.
Plaintiffs counsel did not improperly delay the litigation
and the award would not be a windfall as Plaintiffs benefit
award is not inordinately large. See, e.g., McEwen v
Comm'r of Soc. Sec, No. 3:06-cv-319, 2014 WL 1224212
(M.D. Tenn. 2014) ($9, 453.78 award under § 406),
Salvo v. Comm 'r of Soc. Sec, 751 F.Supp.2d 666
(S.D.N.Y. 2010) ($28, 934 award under § 406); Trejos
v. Comm'r of Soc Sec, No. 6:07-cv-1100-Orl-28GJK,
2010 WL 2854234 (M.D. Fla. 2010) ($16, 889.05 award under
§ 406). In sum, the Commissioner has not identified, and
the Court has not found, any reason to doubt the
reasonableness of the fee request.
Plaintiffs unopposed motion for approval of attorney's
fees under 42 U.S.C. § 406(b) [Doc. 19] is GRANTED and