United States District Court, E.D. Tennessee, Greeneville
Clifton L. Corker United States Magistrate Judge.
matter is before the United States Magistrate Judge under the
standing orders of the Court and 28 U.S.C. § 636 for a
report and recommendation with respect to the Motion filed by
Plaintiff's counsel for an award of $6, 426.00 in
attorney's fees pursuant to 42 U.S.C. § 406(b) for
work performed on behalf of Plaintiff in pursuit of Social
Security benefits [Doc. 26]. Defendant has not responded to
October 22, 2014, Plaintiff filed a Complaint [Doc. 1],
seeking review of the Commissioner's final decision
denying the Plaintiff's application for disability
insurance benefits and supplemental security income benefits.
After the parties filed competing dispositive motions [Docs.
13 & 16], the District Court entered an Order [Doc. 18]
adopting this Court's August 31, 2015 Report and
Recommendations [Doc. 17], granting summary judgment in favor
of Plaintiff on March 6, 2017, remanding the matter to the
Commissioner for further proceedings [Doc. 19].
October 9, 2015, Plaintiff moved for an award of
attorney's fees of $3, 185.00 pursuant to the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. §
2412(d) [Doc. 20]. Thereafter, the parties stipulated to the
entry of an order [Doc. 23] awarding Plaintiff $2, 400.00 in
fees under the EAJA and the Court entered an Order granting
Plaintiff attorney's fees in the stipulated amount [Doc.
25]. The motion now before the Court seeks an additional
award of attorney's fees pursuant to 42 U.S.C. §
406(b) [Doc. 26].
POSITIONS OF THE PARTIES
counsel requests approval to charge attorney's fees
pursuant to 42 U.S.C. § 406(b) based on a contingency
fee agreement with Plaintiff [Docs. 27, 27-1 to -6].
Plaintiff, along with his minor child, was awarded total
past-due benefits in an amount counsel does not specify.
However, counsel advises that $16, 984.50, representing
twenty-five percent of the past-due benefits award for which
Plaintiff contracted to pay in attorney's fees, was
withheld for attorney's fees. Based on the percentage
withheld, Plaintiff and his minor child were awarded $67,
938.00 in past due benefits. Of the amount withhold, counsel
has already been awarded $10, 558.50 by the Regional Chief
Judge for his administrative services. He now requests the
remaining $6, 426.00 of the amount withheld for attorney's
fees. Counsel submits this amount is reasonable pursuant to
Gisbrecht v. Barhhart, 535 U.S. 789 (2002).
Commissioner has not responded to the fee motion.
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
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