Opinion
Case No. 16-14350
01-26-2021
MICHAEL GONZALES, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
U.S. MAGISTRATE JUDGE R. STEVEN WHALEN
ORDER ADOPTING REPORT & RECOMMENDATION [34]; OVERRULING DEFENDANT'S OBJECTION [35]; GRANTING PLAINTIFF'S MOTION FOR ATTORNEY FEES [30]
Before the Court is Plaintiff's Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) [30] filed on August 1, 2019. Defendant filed a Response [31] on August 15, 2019. Plaintiff filed a Reply [32] on August 22, 2019. Plaintiff's Motion [30] was referred to Magistrate Judge R. Steven Whalen for determination of non-dispositive motions pursuant to 28 U.S.C. § 636(b)(1)(A). On November 1, 2019, the Magistrate Judge issued an R&R [34] recommending that Defendant's Motion [30] be granted. (ECF No. 34). Defendant filed an Objection [35] on November 18, 2019. Plaintiff filed a Response [36] on November 22, 2019 and an Addendum [37] on December 19, 2019. For the reasons stated below, the Court OVERRULES Defendant's Objection [35] and ADOPTS the R&R [34]. Plaintiff's Motion for Attorney Fees [30] is GRANTED.
FACTUAL BACKGROUND
The Magistrate Judge summarized the factual background as follows:
On February 6, 2018, Magistrate Judge Mona K. Majzoub entered a Report and Recommendation recommending that this matter be remanded to the Commissioner for further proceedings under Sentence Four of 42 U.S.C. § 405(g) [ECF No. 19]. District Judge Arthur J. Tarnow entered judgment in favor of the Plaintiff on February 22, 2018, remanding the case to the administrative level [ECF No. 21]. The Court denied Plaintiff's motion for fees under the Equal Access to Justice Act on June 26, 2019. [ECF No. 29].
On remand, the Commissioner rendered a decision favorable to the Plaintiff, and on July 24, 2019 issued a Notice awarding Plaintiff $60,332.00 in past due benefits. Plaintiff's attorney at the administrative level (who is a member of the same law firm as present counsel) requested an attorney fee of $9,000.00. This included benefits awarded as part of a separate application that was filed while this case was pending in federal court.
Plaintiff executed a contingent fee agreement with counsel, agreeing to pay 25% of past due benefits. [ECF No. 30-6, PageID.1015]. The agreement estimated that amount to be $6,000.00.
The case was reassigned from Judge Majzoub to [Judge Whalen] on October 4, 2019.
ANALYSIS
The Court has jurisdiction under 42 U.S.C. §406(b)(1)(A) to "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." The Court must make an independent determination of the reasonableness of any fees awarded pursuant to § 406(b). Gisbrecht v. Barnhart, 535 U.S. 789, 807-08 (2002) (holding that courts may award a reasonable fee not to exceed twenty-five percent of past-due benefits and should consider the character of the representation and the results the representation achieved in determining the reasonableness of a contingency fee agreement).
Here, Plaintiff's counsel worked a total of 17.2 hours representing Plaintiff in federal court and successfully obtained $60,332 in past-due benefits. (ECF No. 30-7); (ECF No. 30-3, PageID.1007). He requests a fee of $6,083. (ECF No. 30, PageID.995). In combination, with the $9,000 fee that was requested at the administrative level, Plaintiff's total requested fee is twenty-five percent of the past-due benefits: $15,083. (ECF No. 36-1). Therefore, the amount of attorney fees requested is reasonable.
Noting that this fee is reasonable under 42 U.S.C. § 406(b), the Magistrate Judge concluded that this Court should grant the requested fee. (ECF No. 34, PageID.1032-33). Defendant objected. The Court's review of the objection is de novo. 28 U.S.C. § 636(b)(1)(C).
Plaintiff signed a contingency fee agreement with his counsel for twenty-five percent of past-due benefits. (ECF No. 30-6). Once he received his award, Plaintiff signed a consent letter to this Court authorizing payment to his attorney. (ECF No. 30-2). Defendant "takes no position on the award of attorney's fees under 42 U.S.C. § 406(b). (ECF No. 35, PageID.1038). However, Defendant objects, because the Magistrate Judge failed to discuss "the discrepancy between the amount [Plaintiff's] Counsel requested in attorney's fees at the administrative level and the amount the Notice of Award listed Counsel received in attorney's fees." (Id. at 1035). Defendant argues that, because Plaintiff's counsel asked the Social Security Administration (SSA) to recalculate his administrative award from $6,000 to $9,000, the Court should wait to award benefits until the final award of attorney's fees at the administrative level is determined. (Id. at 1036-37).
Plaintiff's Response [36] attaches an exhibit which renders Defendant's objection moot. The exhibit is the SSA's authorization for Plaintiff's counsel to collect an additional $3,660.75 in fees, bringing his administrative award total to $9,000. (ECF No. 36-1). The requested attorney fee of $6,083 is therefore reasonable and approved.
Accordingly,
IT IS ORDERED that Plaintiff's Motion for Attorney Fees [30] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff's counsel, Jacob C. Bender, is awarded an attorney fee in the amount of $6,083.
SO ORDERED.
s/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge Dated: January 26, 2021