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Wilson v. Berryhill

United States District Court, S.D. Alabama, Northern Division

May 23, 2017

SHARON WILSON, o.b.o. T.M.W., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1]Defendant.

          MEMORANDUM OPINION AND ORDER

          KATHERINE P. NELSONUNITED STATES MAGISTRATE JUDGE

         This action is before the Court on the motion for fees under 42 U.S.C. § 406(b) (Doc. 27) filed by Brian Roy Charmichael, Esq., counsel of record for Plaintiff Sharon Wilson, o.b.o T.M.W. (“the Plaintiff”).[2] The Defendant Commissioner of Social Security (“the Commissioner”) has filed a response which neither “supports nor opposes” the motion and is instead made for informational purposes.[3] (Doc. 29). Charmichael has filed a reply (Doc. 30) to the response. The motion is now under submission. (See Doc. 28). Upon consideration, the Court finds that the § 406(b) motion (Doc. 27) is due to be GRANTED.[4]

         I. Background

         The Plaintiff, at all times represented by Charmichael, commenced this action under 42 U.S.C. § 1383(c)(3) for judicial review of an unfavorable final decision of the Commissioner denying her application for supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. (Doc. 1). In accordance with the Court's scheduling order (Doc. 7), the Commissioner filed her answer (Doc. 13) to the complaint and the record of the administrative proceedings (Doc. 14); the Plaintiff filed his brief identifying errors in the Commissioner's final decision (Doc. 15); and the Commissioner filed her brief responding to the Plaintiff's claims of error (Doc. 16). After holding oral argument, the Court reversed and remanded the Commissioner's final decision under sentence four of 42 U.S.C. § 405(g) (applicable to SSI claims under § 1383(c)(3)). (Docs. 21, 22). The Plaintiff subsequently filed a motion for attorney's fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)[5] (Doc. 23), which the Court granted, awarding the Plaintiff $4, 301.25. (Doc. 26).

         Following remand to the Social Security Administration (SSA), an Administrative Law Judge (“ALJ”) issued a fully favorable decision for the Plaintiff on her SSI application. (See Doc. 27-1). A notice of award of past-due benefits in the amount of $83, 595.00 was issued April 10, 2017. (Doc. 27-3). Charmichael filed the present § 406(b) motion on May 1, 2017.

         II. Analysis

[U]nder 42 U.S.C. § 406(b), a court entering judgment in favor of a Social Security benefits claimant who was represented by an attorney “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.” 42 U.S.C. § 406(b)(1)(A). Assuming that the requested fee is within the 25 percent limit, the court must then determine whether “the fee sought is reasonable for the services rendered.” Gisbrecht v. Barnhart, 535 U.S. 789, 807, 122 S.Ct. 1817, 1828, 152 L.Ed.2d 996 (2002). For example, courts 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. Id. at 808, 122 S.Ct. at 1828. A § 406(b) fee is paid by the claimant out of the past-due benefits awarded. 42 U.S.C. § 406(b)(1)(A).

Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010).[6] “42 U.S.C. § 406(b) authorizes an award of attorney's fees where[, as here, ] 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.” Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006) (per curiam).

         a. Timeliness

         “Fed. R. Civ. P. 54(d)(2) applies to a § 406(b) attorney's fee claim.” Id. Rule 54(d)(2)(B)(i) provides that, “[u]nless a statute or a court order provides otherwise, [a] motion[ for attorney's fees] must be filed no later than 14 days after the entry of judgment.” In ordering remand in this action, “the Court grant[ed he Plaintiff]'s attorney an extension of time in which to file a petition for authorization of attorney's fees under 42 U.S.C. § 406(b) until thirty days after receipt of a notice of award of benefits from the Social Security Administration.” (Doc. 19 at 3). Because Charmichael's § 406(b) motion was filed within 30 days of the date of the Plaintiff's notice of award, the motion is timely.

         b. Reasonableness

In Gisbrecht v. Barnhart, the Supreme Court considered 42 U.S.C. § 406(b) and clarified its impact on the district court's role in awarding a reasonable fee following a favorable claim for Social Security benefits. See 535 U.S. 789, 807, 122 S.Ct. 1817, 1828, 152 L.Ed.2d 996 (2002). Although § 406(b)(1)(A) gives district courts the power to “determine and allow as part of its judgment a reasonable fee” following a favorable claim for Social Security benefits, 42 U.S.C. § 406(b)(1)(A), it does not empower them to ignore the fee agreements entered into by parties when determining what a reasonable fee would be, see Gisbrecht, 535 U.S. at 807, 122 S.Ct. at 1828 (concluding that “ § 406(b) does not displace contingent-fee agreements as the primary means by which fees are set”). Instead, courts must look to the agreement made by the parties and independently review whether the resulting fee is reasonable under the circumstances. Id. Accordingly, [a court] must look to the fee agreement made by [a claimant] and his attorney.

Keller v. Comm'r of Soc. Sec., 759 F.3d 1282, 1284 (11th Cir. 2014).

         Section 406(b)(1)(A) “prohibits fee agreements from providing for a fee ‘in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled.' ” Id. at 1285 (quoting 42 U.S.C. § 406(b)(1)(A)). However “the agreement, not the statute, provides the ‘primary means by which fees are set.' ” Id. (quoting Gisbrecht, 535 U.S. at 807). In retaining Charmichael, the Plaintiff entered into a ...


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