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Rodriguez v. Commissioner of Social Security

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

August 19, 2019

KELLY MARIE RODRIGUEZ, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          REPORT AND RECOMMENDATION

          GREGORY J. XELLY, UNITED STATES MAGISTRATE JUDGE.

         This cause came on for consideration without oral argument on the following motion:

MOTION: RICHARD A. CULBERTSON'S UNOPPOSED REQUEST FOR AUTHORIZATION TO CHARGE A REASONABLE FEE AND MEMORANDUM ON REASONABLE FEES PURSUANT TO 42 U.S.C. §406(b) (Doc. No. 22)
FILED: August 16, 2019
THEREON it is RECOMMENDED that the motion be GRANTED.

         I. BACKGROUND.

         On May 19, 2016, Plaintiff and her counsel, Richard A. Culbertson, Esq., entered into a contingency fee agreement (the “Agreement”) whereby Plaintiff agreed to pay counsel a fee of twenty-five percent of the total amount of past-due benefits ultimately awarded. Doc. No. 22-1. On May 15, 2017, judgment was entered reversing and remanding this case to the Commissioner of Social Security (the “Commissioner”) for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Doc. Nos. 16-17. On July 11, 2017, Plaintiff was awarded attorney's fees in the amount of $3, 461.09 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (the “EAJA”). Doc. No. 21 at 2.

         On April 8, 2019, the Commissioner sent Plaintiff a Notice of Award, stating that Plaintiff's past-due benefits are $40, 008.00, and that he is withholding $10, 002.00 in anticipation of paying an attorney's fee. Doc. No. 22-2 at 7. On August 16, 2019, counsel filed a motion (the “Motion”) for authorization to charge Plaintiff $4, 002.00 in attorney's fees, pursuant to 42 U.S.C. § 406(b). Doc. No. 22 at 8.

         II. LAW.

         Section 406(b)(1)(A) provides, in relevant part, as follows:

Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security may, notwithstanding the provisions of section 405(i) of this title, but subject to subsection (d) of this section, certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits. In case of any such judgment, no other fee may be payable or certified for payment for such representation except as provided in this paragraph.

         The statute further provides that it is unlawful for an attorney to charge, demand, receive, or collect for services rendered in connection with proceedings before a court any amount in excess of that allowed by the court. See id.; § 406(b)(2). Accordingly, to receive a fee under this statute, an attorney must seek court approval of the proposed fee, even if there is a fee agreement between the attorney and the client. In Bergen v. Commissioner of Social Security, 454 F.3d 1273, 1277 (11th Cir. 2006), the Eleventh Circuit held that “§ 406(b) authorizes an award of attorney's fees where the district court remands the case to the Commissioner of Social Security for further proceedings, and the Commissioner on remand awards the claimant past-due benefits.” Since Plaintiff was awarded past-due benefits following remand (see Doc. No. 22-2), the Court may award attorney's fees under § 406(b).

         III. ANALYSIS.

         A. Fee Awards ...


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