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Blanton v. Berryhill

United States District Court, M.D. Florida, Tampa Division

October 16, 2017

DEBRA DENISE BLANTON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the United States Social Security Administration, [1] Defendant.

          REPORT AND RECOMMENDATION

          THOMAS B. McCOUN III UNITED STATES MAGISTRATE JUDGE.

         THIS MATTER is before the Court on Plaintiff's [Opposed] Motion for Attorney Fees Under 42 U.S.C. § 406(b) (Doc. 27) and Defendant's response in opposition (Doc. 31).

         I.

         By the motion, Plaintiff's attorney seeks an Order, pursuant to 42 U.S.C. § 406(b), approving an award of attorneys' fees in the amount of $13, 675.00. She claims she has not received an attorney's fee award under the Equal Access to Justice (EAJA); her attorney had been authorized to receive a fee in this case in the amount of $15, 900; and she has been notified that the SSA is withholding the amount of $13, 675, which represents the balance of the 25% of past due benefits awarded. (Doc. 27).

         Defendant opposes the motion, claiming Plaintiff's attorney has failed to show that the request is reasonable and will not result in a windfall to the attorney to the detriment of the client. She argues the district court must conduct an independent reasonableness determination as to the appropriate fee. She argues that Plaintiff's attorney did not include in his motion the number of hours incurred representing Plaintiff in this action or his normal hourly rate. In the absence of such information, she submits that the motion should be denied. (Doc. 31).

         II.

         An award of attorney's fees is authorized under 42 U.S.C. § 406(b) where the district court remands the case to the Commissioner for further proceedings, and the Commissioner on remand awards the claimant past-due benefits.[2] Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1276-78 (11th Cir. 2006). Under those circumstances, the claimant may return to the court and seek fees not exceeding twenty-five percent of the past-due benefits awarded. See 42 U.S.C. §406(b)(1)(A); Paltan v. Comm'r of Soc. Sec., 518 F. App'x 673, 674 (11th Cir. 2013). The fees, however, must still be reasonable and may be offset against a previous award.[3] See Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002); Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1274 (11th Cir. 2010). An attorney who is successful in claiming both EAJA fees from the United States and an award under § 406(b) (which comes out of past-due benefits) must refund “to the claimant the amount of the smaller fee.” Gisbrecht, 535 U.S. at 796 (2002). The attorney may elect to deduct an earlier EAJA award from a subsequent 406(b) award rather than refunding the smaller EAJA fee and accepting the 406(b) in full. Green v. Comm'r of Soc. Sec., 390 F. App'x 873, 874 (11th Cir. 2010).

         Pertinent here, section 406 of the Social Security Act provides for two types of fee awards, both of which are paid from the claimant's past-due benefits. Section 406(a) authorizes fees for representation at the administrative level. Fees awarded under this section are capped at 25% of that amount or a lesser fixed amount. 42 U.S.C. § 406(a)(2)(A), (C). Section 406(b) authorizes fees for representation in federal court. Fees awarded under this section also are capped at 25% of that amount. 42 U.S.C. § 406(b)(1)(A). Where an attorney receives a fee award pursuant to section 406(a) for administrative work and section 406(b) for work before a court, the aggregate of the fees cannot exceed 25% of past-due benefits. Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir. 1970) (“We are fully convinced that 42 U.S.C.[ ] [§] 406 precludes the aggregate allowance of attorney's fees greater than twenty-five percent of the past due benefits received by the claimant. Dawson has already been authorized by the Secretary to charge the maximum. He is entitled to no more.”);[4] Wood v. Comm'' of Soc. Sec., 861 F.3d 1197, 1206 (11th Cir. 2017) (affirming Dawson as binding precedent and finding the district court did not err in its interpretation and application of Dawson).

         III.

         In this case, counsel undertook to represent the claimant on a contingency fee basis. (See Doc. 27 at 4-7). According to the fee agreement dated July 18, 2006, for work performed before the Social Security Administration, Plaintiff's attorney was entitled to 25% of the “total past-due benefits awarded ... or $5, 300.00, whichever is less.” Id. at 4. The subsequent fee agreement dated October 10, 2007, provides, in pertinent part, “If I lose at the ALJ hearing and my attorney agrees to appeal and I win my case later, the fee will be [25%] of all past due benefits awarded in my case.” Id. at 6.

         On appeal from the administrative decision, the Court entered Judgment for Plaintiff, reversing the decision of the Commissioner and remanding the case for further proceedings. (Docs. 20, 21). Thereafter, the Court denied without prejudice Plaintiff request for attorney's fees under the Equal Access to Justice Act (EAJA). (Docs. 22, 23).[5]

         Plaintiff did not re-file her motion for EAJA fees, but instead filed the instant motion following the resolution of her claim on remand. Plaintiff states that her attorney “had been authorized to receive a fee in this case in the amount of $15, 900.00” (Doc. 27 at 2); however, it is entirely unclear if all or a portion of these fees have been received and in what amount.

         On August 18, 2017, after initial review of the motion and response, this Court directed Plaintiff's counsel to supplement his motion within ten (10) days as to the following: the total amount of past-due benefits awarded to Plaintiff; the status of any award of fees under 42 U.S.C. 406(a) or other fees received by counsel; and the number of hours counsel incurred in representing Plaintiff in this action. (Doc. 32). Plaintiff's counsel has not supplemented his motion or otherwise responded.

         On the record presented, the total amount of past due benefits awarded to Plaintiff is unknown. In addition, it is unclear if Plaintiff s counsel has received some or all of the $15, 900, presumably awarded under section 406(a). As such, I am unable to ascertain whether the combined fees received ...


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