United States District Court, M.D. Florida, Orlando Division
REPORT AND RECOMMENDATION
GREGORY J. XELLY, UNITED STATES MAGISTRATE JUDGE.
cause came on for consideration without oral argument on the
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.
FILED: August 16, 2019
THEREON it is RECOMMENDED
that the motion be GRANTED.
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.
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.
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
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
Fee Awards ...