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King v. Berryhill

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

March 26, 2019

BRADLEY JOSEPH KING, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER

          Clifton L. Corker United States Magistrate Judge.

         This 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 the motion.

         I. PROCEDURAL HISTORY

         On 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].

         On 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].

         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 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[1] of the amount withheld for attorney's fees. Counsel submits this amount is reasonable pursuant to Gisbrecht v. Barhhart, 535 U.S. 789 (2002).

         The Commissioner has not responded to the fee motion.

         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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