Opinion

Brown v. Commissioner of Social Security

Court
District Court, M.D. Florida
Filed
Oct 1, 2024
Cited by
0 cases
Authority
More cited than 33.4%

The opinion

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

JACKSONVILLE DIVISION

DARLENE BROWN,

Plaintiff,

v. CASE NO. 3:21-cv-1221-MMH-MCR

COMMISSIONER OF THE SOCIAL

SECURITY ADMINISTRATION,

Defendant.

____________________________________/

REPORT AND RECOMMENDATION1

THIS CAUSE is before the Court on the Uncontested Motion & Brief

for Attorney Fees Pursuant to 42 U.S.C. § 406(b) (“Motion”) (Doc. 22).

Plaintiff’s counsel, Bill Berke, Esq., makes a timely request for an award of

attorney’s fees pursuant to Section 206(b) of the Social Security Act, 42

U.S.C. § 406(b), in the net amount of $20,084.89. (Id.) For the reasons stated

herein, the undersigned respectfully RECOMMENDS that the Motion be

GRANTED.

1 “Within 14 days after being served with a copy of [this Report and

Recommendation], a party may serve and file specific written objections to the

proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). “A party may

respond to another party’s objections within 14 days after being served with a copy.”

Id. A party’s failure to serve and file specific objections to the proposed findings and

recommendations alters the scope of review by the District Judge and the United

States Court of Appeals for the Eleventh Circuit, including waiver of the right to

challenge anything to which no specific objection was made. See Fed. R. Civ. P.

72(b)(3); 28 U.S.C. § 636(b)(1)(B); 11th Cir. R. 3-1.

I. Background

On December 14, 2021, Plaintiff filed a Complaint in this Court,

appealing the Commissioner’s denial of his application for a period of

disability and disability insurance benefits (“DIB”). (Doc. 1.) On February

23, 2023, the Court reversed the Commissioner’s decision and remanded the

case to the ALJ for further proceedings pursuant to sentence four of 42 U.S.C.

§ 405(g). (Doc. 16.) On May 26, 2023, the Court granted Plaintiff’s Motion

for an Award of Attorney’s Fees under the Equal Access to Justice Act

(“EAJA”), 28 U.S.C. § 2412(d), and awarded Plaintiff’s counsel $7,322.03 for

attorney’s fees. (Doc. 21.)

On remand, the Commissioner issued a favorable decision, finding

Plaintiff entitled to disability benefits, and withheld $27,406.92, or 25% of

Plaintiff’s past-due benefits of $109,627.70, for the possible payment of

attorney’s fees pursuant to 42 U.S.C. § 406(b). (Doc. 22 at 1.) Plaintiff’s

counsel now seeks an award of attorney’s fees pursuant to the contingent fee

contract2 with Plaintiff in the net amount of $20,084.89 ($27,406.92, which is

25 percent of Plaintiff’s past-due benefits, less $7,322.03, which is the

previously awarded EAJA fee). (Id. at 2.)

2 The contract, which is attached to the Motion, provides that the claimant agrees to

pay a fee of 25 percent of the total amount of past-due benefits to which he is

entitled. (Doc. 22-2.)

II. Standard

Under 42 U.S.C. § 406(b), attorneys who secure a favorable result for

their clients upon remand from federal court may petition the Court for a fee

“not in excess of 25 percent of the total of the past-due benefits to which the

claimant is entitled.” 42 U.S.C. § 406(b)(1)(A). In capping the fee at 25

percent, “Congress . . . sought to protect claimants against ‘inordinately large

fees’ and also to ensure that attorneys representing successful claimants

would not risk ‘nonpayment of [appropriate] fees.’” Gisbrecht v. Barnhart,

535 U.S. 789, 805 (2002).

In Gisbrecht, the Supreme Court stated:

[Section] 406(b) does not displace contingent-fee agreements as the

primary means by which fees are set for successfully representing

Social Security benefits claimants in court. Rather, § 406(b) calls

for court review of such arrangements as an independent check, to

assure that they yield reasonable results in particular cases. . . .

Within the 25 percent boundary, . . . the attorney for the successful

claimant must show that the fee sought is reasonable for the

services rendered.

Id. at 807.

The first place that the Court should turn to in assessing the

reasonableness of a fee is the parties’ fee agreement. Id. at 808. In

conducting its independent check to ensure that a fee is reasonable, the Court

may appropriately reduce the fee for a number of reasons, including “the

character of the representation and the results the representative achieved,”

any delay caused by counsel “so that the attorney will not profit from the

accumulation of benefits during the pendency of the case in court,” and/or

benefits that “are large in comparison to the amount of time counsel spent on

the case.” Id.

In this regard, the court may require the claimant’s attorney to

submit, not as a basis for satellite litigation, but as an aid to the

court’s assessment of the reasonableness of the fee yielded by the

fee agreement, a record of the hours spent representing the

claimant and a statement of the lawyer’s normal hourly billing

charge for noncontingent-fee cases.

Id.

III. Analysis

The contingency fee contract in this case provides that Plaintiff agreed

to pay his counsel 25 percent of his past-due benefits. (Doc. 22-2.) Plaintiff’s

counsel’s request for an award of $27,406.92, less the EAJA fee of $7,322.03,

is within the statutory maximum. Therefore, the contract is presumptively

reasonable.

Moreover, there is no reason to reduce the amount of the requested fee.

First, with respect to the character of the representation and the results

achieved, the Court notes that Plaintiff’s counsel provided professional and

skilled representation, resulting in a significant award of past-due benefits,

ongoing disability benefits, and Medicare. The Court also finds that counsel

promptly prosecuted this case.

Further, the Court does not find the requested fee to be

disproportionately large in relation to the total amount of time spent on this

case (35 hours, resulting in an hourly rate of $217.87).3 See, e.g., White v.

Comm’r of Soc. Sec., No. 6:09-cv-1208-JA-GJK, 2012 WL 1900562, *6 (M.D.

Fla. May 2, 2012) (report and recommendation adopted by 2012 WL 1890558

(M.D. Fla. May 24, 2012)) (approving a contingency fee, which amounted to

$1,491 per hour, as reasonable under § 406(b)); Foster v. Astrue, No. 3:08-cv-

960-HWM-JRK (Doc. 46) (M.D. Fla. Jan. 4, 2012) (adopting a magistrate

judge’s report and recommendation and approving a contingency fee, which

amounted to $1,025.28 per hour, as reasonable under § 406(b)); Howell v.

Astrue, No. 3:06-cv-438-MCR (M.D. Fla. Jan. 5, 2009) (finding an hourly rate

of $625 reasonable based on a 2.5 multiplier); McKee v. Comm’r of Soc. Sec.,

No. 6:07-cv-1554-KRS, 2008 WL 4456453, *6-7 (M.D. Fla. Sept. 30, 2008)

(approving a contingency fee, which amounted to $1,100 per hour, as

reasonable under § 406(b)); Watterson v. Astrue, No. 3:06-cv-369-HTS, 2008

WL 783634, *1-2 (M.D. Fla. Mar. 21, 2008) (finding a contingency fee, which

amounted to $1,089.66 per hour, to be reasonable under § 406(b)); Vilkas v.

Comm’r of Soc. Sec., No. 2:03-cv-687-JES-DNF, 2007 WL 1498115, *2 (M.D.

Fla. May 14, 2007) (finding a contingency fee, which amounted to $1,121.86

3 Although Plaintiff’s counsel spent 38.5 hours on this case, he seeks to recover fees

for only 35 hours. (Doc. 22-3 at 6.)

per hour, to be reasonable under § 406(b)); Bergen v. Barnhart, No. 6:02-ev-

458-ACC-KRS (Docs. 26, 36) (M.D. Fla. Sept. 21, 2006) (approving a

contingency fee translating to an award of $1,116.11 per hour under §

A06(b)).

There are no other potential reasons to reduce the fee. Therefore,

because the undersigned finds the contingency fee contract reasonable and

because there is no reason to reduce the amount of the requested fee,

Plaintiffs counsel should be awarded the requested fee.

Accordingly, it is respectfully RECOMMENDED that:

1. The Motion (Doc. 22) be GRANTED.

2. The Commissioner be directed to pay to Plaintiff's counsel the net

amount of $20,084.89 for § 406(b) fees out of Plaintiff's past-due benefits.

3. The Clerk of Court be directed to enter judgment accordingly.

DONE AND ENTERED at Jacksonville, Florida, on October 1, 2024.

: MONTE C. RICHARDSON

UNITED STATES MAGISTRATE JUDGE

Copies to:

The Hon. Marcia Morales Howard

United States District Judge

Counsel of Record

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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