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Coaxum v. Berryhill

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

January 30, 2019

SIDNEY R. COAXUM, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION AND ORDER

          KATHERINE P. NELSON UNITED STATES MAGISTRATE JUDGE

         This action is before the Court on the motion for fees under 42 U.S.C. § 406(b) (Doc. 28) filed by Byron A. Lassiter, Esq., counsel of record for Plaintiff Sidney R. Coaxum.[1] The Defendant Commissioner of Social Security (“the Commissioner”) timely filed a response (Doc. 30) stating that she “neither supports nor opposes” the motion.[2] Upon consideration, the Court finds that Lassiter's § 406(b) motion is due to be GRANTED.[3]

         I. Background

         Plaintiff Coaxum, at all times represented by Lassiter, brought this action under 42 U.S.C. §§ 405(g) and 1383(c)(3) for judicial review of an unfavorable final decision of the Commissioner denying his applications for a period of disability and disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. § 401, et seq., and for supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42 U.S.C. § 1381, et seq. In accordance with the Court's scheduling order (Doc. 7), the Commissioner filed her answer (Doc. 12) to the complaint and the certified record of the relevant administrative proceedings (Docs. 13, 14), and Coaxum filed his fact sheet and brief identifying alleged errors in the Commissioner's final decision (Doc. 18). In lieu of a brief responding to those claims of error, the Commissioner filed a voluntary, unopposed motion to reverse her unfavorable final decision under sentence four of § 405(g) and remand the case to the Social Security Administration (“SSA”) for further proceedings, which the Court granted. (See Docs. 19, 22, 23). Coaxum subsequently filed a motion for attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412[4] (Doc. 24), which the Court granted, awarding Coaxum $3, 171.47 in EAJA attorney fees. (See Doc. 27).

         Following remand to the SSA, an Administrative Law Judge (“ALJ”) issued a favorable decision for Coaxum on his DIB and SSI applications. A notice of award computing Coaxum's past-due benefits was issued on November 13, 2018 (Doc. 28-2). Lassiter filed the present § 406(b) motion on December 7, 2018.

         II. Analysis

         Under 42 U.S.C. § 406(b), “[w]henever a court renders a judgment favorable to a [DIB] claimant…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…” 42 U.S.C. § 406(b)(1)(A). “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).[5]

         a. Timeliness

          Federal Rule of Civil Procedure 54(d)(2), which “applies to a § 406(b) attorney's fee claim[, ]” id., 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.” Fed.R.Civ.P. 54(d)(2). In its order remanding Coaxum's case, the Court granted “Coaxum's counsel an extension of time in which to file a motion for fees under 42 U.S.C. § 406(b)…until thirty days after the date of receipt of a notice of award of benefits from the SSA.” (Doc. 22 at 2-3). The order further stated: “Consistent with 20 C.F.R. § 422.210(c), ‘the date of receipt of notice … shall be presumed to be 5 days after the date of such notice, unless there is a reasonable showing to the contrary.' ” (Id.).[6] Coaxum's award notice was issued November 13, 2018. Therefore, Lassiter's § 406(b) motion (Doc. 28), filed less than 30 days later, 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). “[T]he agreement, not the statute, provides the ‘primary means by which fees are set.' ” Id. (quoting Gisbrecht, 535 U.S. at 807).

         In retaining Lassiter, Coaxum entered into an attorney fee agreement (Doc. 28-3) which provides, in relevant part, as follows: “It is understood and agreed that I will pay an attorney's fee that will be 25% of the combined gross retroactive benefits from Social Security and Supplemental Security Income (SSI) resulting from a favorable award of the Commissioner, prior to any reduction under Section 1127(a) of the [Social Security] Act…It is understood that the term ‘combined gross retroactive benefits', as used herein, represents the total amount of money to which I and any auxiliary beneficiary or beneficiaries become entitled through the month before the month SSA effectuates a favorable administrative determination or decision on my Social Security claim and that SSI past-due benefits are the total amount of money from ...


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