United States District Court, S.D. Alabama, Northern Division
SHARON WILSON, o.b.o. T.M.W., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
MEMORANDUM OPINION AND ORDER
KATHERINE P. NELSONUNITED STATES MAGISTRATE JUDGE
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”). 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. (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
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) (Doc. 23), which the Court granted,
awarding the Plaintiff $4, 301.25. (Doc. 26).
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.
[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). “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).
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.
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
Keller v. Comm'r of Soc. Sec., 759 F.3d 1282,
1284 (11th Cir. 2014).
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