United States District Court, N.D. Alabama, Western Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS United States District Judge
December 19, 2016, Robert A. Morgan (“Mr.
Morgan”), attorney for Plaintiff Teresa Hunter
(“Ms. Hunter”), moved for an award of
attorney's fees under 42 U.S.C. § 406(b) in the
amount of $18, 521.02 for 20.2 hours of work. (Doc. 29 at 1).
On December 20, 2016, Mr. Morgan moved the Court to defer its
ruling on his previous 406(b) Motion because he had been
informed by Ms. Hunter that her son might have an auxiliary
claim to back due benefits from which an attorney fee could
be paid. (Doc. 25). The Commissioner indicated to the Court that
she did not oppose Mr. Morgan's motion to defer the
Court's ruling (doc.27), and the motion was subsequently
granted. (Doc. 28).
February 20, 2017, Mr. Morgan re-filed a Motion for
Attorney's Fees pursuant to Section 406(b). (Doc. 29). On
March 2, 2017, the Commissioner filed her response, objecting
to the requested award because “[i]n light of the
amount of time Plaintiff's counsel expended before this
Court, ” it would constitute a “windfall.”
(Doc. 30 at 2). The Court has undertaken its duty to
independently review the reasonableness of the fee and
concludes that the fee is not reasonable. The motion is due
to be GRANTED, although the fee award will be reduced.
406(b)(1)(A) provides that “[w]henever a court renders
a judgment favorable to a [represented] claimant . . . the
court may determine and allow . . . a reasonable
[attorney's fee], not in excess of 25 percent of the
total of the past-due benefits.” 42 U.S.C. §
406(b)(1)(A). Where the claimant and his attorney have
executed a contingent-fee agreement, the Supreme Court has
interpreted subsection 406(b) as requiring district courts to
conduct a two-step analysis. See Gisbrecht v.
Barnhart, 535 U.S. 789 (2002). First, the Court
calculates whether the requested award falls “within
the 25 percent limit.” Jackson v.
Comm'r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir.
2010). If so, the agreement is presumptively reasonable. In
step two, the Court must consider whether “the fee
sought is [actually] reasonable for the services
rendered, ” Gisbrecht, 535 U.S. at 807, and,
if not, the presumption is overcome. Where the presumption is
overcome, the Court may award a fee that is reasonable in its
judgment. See id.
standard set out in Gisbrecht is a framework that
has been subsequently bolstered by Courts of
Appeals. “[C]ourts may reduce the requested
fee if the representation has been substandard, if the
attorney has been responsible for delay, or if the benefits
are large in comparison to the amount of time the attorney
spent on the case.” Jackson, 601 F.3d at 1271
(citation omitted). Substandard representation, among other
things, includes a complaint “submitted on boilerplate
pleadings, ” where “no issues of material fact
are present, ” and where “no legal research is
apparent.” Rodriquez v. Bowen, 865 F.2d 739,
747 (6th Cir. 1989).
reasonable fee reflects an enhancement, compared to the
market rate for similar work, based on the risk of
non-payment, because “payment for an attorney in a
social security case is inevitably uncertain.”
Wells v. Sullivan, 907 F.2d 367, 370-71 (2d Cir.
1990). On the other hand, the quality of counsel and hours
expended are weak factors for assessing an award's
reasonableness; they “bear little if any relationship
to the results [i.e., award amount] achieved.”
Rodriquez, 865 F.2d at 747. But the award must not
be so disproportionate to the work performed that it gives
the perception that counsel has won the Social Security
lottery. McGuire v. Sullivan, 873 F.2d 974, 981 (7th
Cir. 1989) (prohibiting a “windfall”); cf.
Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 559
(2010) (fee shifting statutes do not exist to enrich
policy considerations should also inform the Court's
judgment. Section 406 was enacted “to encourage
effective legal representation of claimants by insuring
lawyers that they will receive reasonable fees.”
Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir.
1970). Contingent fees, in particular,
“provide a critical incentive for able attorneys to
practice in the social security field.” Wells,
907 F.2d at 371. At the same time, the Court's review is
the only defense for claimants, see Bergen v. Comm'r
of Soc. Sec., 454 F.3d 1273, 1276 (11th Cir. 2006),
against the gutting of their statutory entitlement by the
“specialized Social-Security bar [that] charges uniform
contingent fees (the statutory maximum of 25%), which are
presumably presented . . . on a
take-it-or-leave-it-basis.” Gisbrecht, 535
U.S. at 812 (Scalia, J., dissenting).
the above-stated principles, the Court finds a valid
contingent fee agreement set at or below the statutory
maximum contingency. (Doc. 29-1). Proceeding to step two, Mr.
Morgan included an itemization of the hours he worked on the
case, cumulating in a total of 20.2 hours. (Doc. 29-7). As
for the attorney's fee, $22, 353.70,  divided over 20.2
hours, comes out to approximately $1, 106.62 per hour. (Doc.
30 at 5). This is a windfall. The Court is of the opinion
that $250 per hour is a more accurate reflection of the
market rate in this district for this kind of work, and the
plaintiff's filings were average quality compared to the
Social Security filings in this district. A rate of $250 per
hour, multiplied by 20.2 hours, totals $5, 050.00. Taking
into account the required enhancement for the uncertainty of
recovery, $7, 575.00 appears to be a reasonable figure.
the Motion (doc. 29) is GRANTED as modified. It is ORDERED
that attorney's fees in the amount of $7, 575.00 be
awarded to Robert A. Morgan. Mr. Morgan's first Motion
for Section 406(b) attorneys fees (doc. 24) is hereby TERMED
 Nancy A. Berryhill was named the
Acting Commissioner on January 23, 2017. See
https://www.ssa.gov/agency/commissioner.html. Under 42
U.S.C. § 405(g), “[a]ny action instituted in
accordance with this subsection shall survive notwithstanding
any change in the person occupying the office of Commissioner
of Social Security or any vacancy in such office.”
Accordingly, pursuant to 42 U.S.C. § 405(g) and Rule
25(d) of the Federal Rules of Civil Procedure, the Court has
substituted Nancy A. Berryhill for Carolyn W. Colvin in the
case caption above and HEREBY DIRECTS the clerk to do the
same party substitution on CM/ECF.
Gisbrecht resolved a circuit
split over whether contingency agreements or the lodestar
method were the appropriate means of determining
attorney's fees ...