United States District Court, E.D. Tennessee, Knoxville
KIMBERLY B. WILSON, Plaintiff,
ANDREW M. SAUL,  Acting Commissioner of Social Security, Defendant.
MEMORANDUM AND ORDER
case is before the undersigned pursuant to 28 U.S.C. §
636(b), the Rules of this Court, and the consent of the
parties [Doc. 16]. Now before the Court is the
Plaintiff's Motion for Attorney Fees Pursuant to 42
U.S.C. § 406(b) [Doc. 28]. Plaintiff requests that the
Court enter an Order awarding $14, 609.50 in attorney's
fees under 42 U.S.C. § 406(b).
21, 2016, the Plaintiff filed a Motion for Judgment on the
Pleadings and Memorandum in Support [Docs. 17 & 18], and
on July 28, 2016, the Commissioner filed a competing Motion
for Summary Judgment and Memorandum in Support [Docs. 19
& 20]. The Court entered a Memorandum Opinion [Doc. 21]
on June 27, 2017, granting in part the Plaintiff's motion
and denying the Commissioner's motion. Specifically, the
Court ordered that the case be remanded to the Administrative
Law Judge to reconsider certain medical opinions pursuant to
20 C.F.R. § 404.1527(c).
5, 2017, Plaintiff filed a Motion for Attorney's Fees
Under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412(d) [Doc. 23]. After the Commissioner
responded that she did not oppose Plaintiff's motion
[Doc. 26], the Court entered an Order on July 25, 2017,
granting Plaintiff $1, 812.50 in attorney's fees and
$20.88 in expenses pursuant to the EAJA, 28 U.S.C. §
2412(d) [Doc. 27]. The instant motion before the Court seeks
an additional award of attorney's fees pursuant to 42
U.S.C. § 406(b). [Doc. 28].
POSITIONS OF THE PARTIES
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. 28]. Counsel asserts
that Plaintiff was awarded past-due benefits, of which $24,
609.50 was withheld for payment of fees associated with the
award, and that Plaintiff contracted with counsel to pay
twenty-five percent of the remainder of past-due benefits,
which equals $14, 609.50 in attorney's fees. [Doc. 30 p.
3-4]. Counsel further explains that Plaintiff was previously
awarded an attorney's fee of $1, 812.50 under the EAJA,
and if the Court awarded an attorney's fee under 42
U.S.C. § 406(b), then the EAJA fee would be refunded to
Plaintiff. [Doc. 28 p. 1-2]. Counsel submits that this amount
is reasonable and should be upheld pursuant to Gisbrecht
v. Barhhart, 535 U.S. 789 (2002). [Doc. 30 p. 2].
Commissioner subsequently filed a Response [Doc. 33] stating
that he does not oppose payment of an attorney's fee in
the amount of $10, 875.00 and that Plaintiff's counsel
has agreed to accept this amount as full compensation.
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
benefits to which Plaintiff is entitled.
See Id. The Court will address each condition in