United States District Court, D. Alaska
PERRY K. THOMAS, Plaintiff,
v.
CAROLYN W. COLVIN Acting Commissioner of Social Security, Defendant.
ORDER GRANTING PLAINTIFF'S UNOPPOSED MOTION FOR
ATTORNEY FEE PURSUANT TO 42 U.S.C. § 406(B)
TIMOTHY M. BURGESS, CHIEF UNITED STATES DISTRICT JUDGE
I.
INTRODUCTION
Plaintiff
Perry K. Thomas, through his attorney Robert A. Friedman of
Robert A. Friedman and Associates, P.S., moves the Court to
authorize $19, 394 in fees under 42 U.S.C. §
406(b).[1] Defendant Carolyn W. Colvin does not
object to this motion.[2] For the reasons that follow, Thomas's
unopposed Motion for Authorization of Attorney Fee at
docket 24 is GRANTED.
II.
BACKGROUND
Thomas
initiated this action on July 8, 2013, seeking reversal and
remand of Defendant's decision denying his claim for
Disability Insurance Benefits and Supplemental Security
Income (“SSI”) Benefits.[3] The parties are familiar
with the facts of the case, and the Court will not recite
them here. On August 27, 2014, this Court remanded
Thomas's case to the Administrative Law Judge
(“ALJ”) for further consideration, finding that
Defendant's decision denying his disability and SSI
benefits was not supported by substantial
evidence.[4] On January 28, 2015, this Court granted
Thomas's Motion for Attorney's Fees under the Equal
Access to Justice Act (“EAJA”)[5]and awarded $6,
950.63 in attorney's fees.[6] On remand, the ALJ determined
that Thomas was disabled with a disability onset date of
December 9, 2009.[7] On July 4, 2016, the Social Security
Administration sent Thomas a Notice of Award entitling him to
$77, 576 in past-due benefits.[8]Thomas, through his attorney, now
moves for a fee award of $19, 394 pursuant to 42 U.S.C.
§ 406(b).[9] Defendant “has given substantive
consideration to the merits of Plaintiff's request and
found no basis to object. . . . and will defer to the
Court's assessment of the matter.”[10]
III.
DISCUSSION
A.
42 U.S.C. § 406(b) Award
42
U.S.C. § 406 pertains to the representation of claimants
before the Commissioner of Social Security. Section 406(b)
provides that:
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 . .
. .[11]
The
United States Supreme Court has interpreted this language to
permit contingent-fee agreements of up to twenty-five percent
of past-due benefits, [12] and instructs lower courts to
“review for reasonableness fees yielded by those
agreements.”[13] “Because the SSA has no direct
interest in how much of the award goes to counsel and how
much to the disabled person, the district court has an
affirmative duty to assure that the reasonableness of the fee
is established.”[14]The Ninth Circuit provides the
following guidance in determining the reasonableness of the
requested fee: “the district court must first look to
the fee agreement and then adjust downward if the attorney
provided substandard representation or delayed the case, or
if the requested fee would result in a
windfall.”[15] If the court determines that the fee is
not reasonable and departs from the terms of the
contingent-fee agreement, it should state for the record why
the deductions are being made.[16]
In the
present case, Thomas has entered into a contingent-fee
agreement with his attorney, in which Friedman's
compensation would be twenty-five percent of the past-due
benefits awarded to Thomas if successful on the
disability/SSI claim.[17] As the Supreme Court noted in
Gisbrecht, such contingent-fee agreements are the
“most common fee arrangement between attorneys and
Social Security claimants.”[18] Thomas ultimately
prevailed and was awarded $77, 576 in past-due benefits. As
the contingent-fee agreement between Thomas and Friedman
falls within the statutory ceiling provided by 42 U.S.C.
§ 406(b), the Court next evaluates the reasonableness of
the fee sought by Friedman for the services rendered in this
case.
There
is no indication that Friedman provided substandard
representation or delayed the case in any way. Additionally,
the fee award of $19, 394 is not an unreasonable windfall
considering the 36 hours of attorney time and 2.6 hours of
paralegal time invested in the case, the monetary risk
involved to Friedman if he did not prevail on behalf of his
client, and the generally recognized social policy of
permitting contingent fees in disability cases where
claimants would not otherwise have the means to access legal
representation.[19] The Court determines that the
authorization for fee award of $19, 394 sought under 42
U.S.C. § 406(b) is reasonable in this case.
B.
Equal Access to Justice Award
The
Court previously awarded $6, 950.63 to Friedman under the
EAJA for his representation in this case.[20] Friedman
requests that the Court direct him to refund this amount to
Thomas.[21] Unlike fee awards under 42 U.S.C. §
406(b), “EAJA fees are determined not by a percent of
the amount recovered, but by the time expended and the
attorney's hourly rate.”[22] The Supreme Court
explained that “Congress harmonized fees payable by the
Government under EAJA with fees payable under § 406(b)
out of the claimant's past-due Social Security benefits
in this manner: Fee awards may be made under both
prescriptions, but the claimant's ...