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Melanie O. v. Berryhill

United States District Court, N.D. Texas, Dallas Division

May 20, 2019

MELANIE O., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          DAVID L. HORAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Melanie O.'s counsel Daniel Skaar has filed a Motion for Award of Attorney Fees Under the Social Security Act. See Dkt. No. 34. United States District Judge Jane J. Boyle has referred this matter to the undersigned United States magistrate judge for recommendation.

         For the reasons explained below, the Court should grant the motion.

         Background

         On January 8, 2016, Plaintiff filed a complaint challenging the Commissioner of Social Security's decision denying her claim for benefits under the Social Security Act. See Dkt. No. 1. By an order and judgment entered on May 26, 2017 [Dkt. Nos. 27 & 28], the Court reversed and remanded this case for further administrative proceedings. Plaintiff then moved for, and was awarded, attorneys' fees under the Equal Access to Justice Act (“EAJA”) in the amount of $12, 056.00. See Dkt. Nos. 34 & 35.

         In his Motion for Award of Attorney Fees Under the Social Security Act, Mr. Skaar explains that “[t]he Commissioner subsequently issued a partially favorable decision awarding benefits to Plaintiff on November 21, 2018”; that he “has received notice from the Social Security Administration certifying that the past due benefits awarded in this case were $105, 112.67 for the Plaintiff and her family”; that he “is precluded from seeking, and the court may not approve, more than $26, 278.17 under 42 U.S.C. § 406(b)(1) for legal services performed on Plaintiff's behalf at the federal court level”; and that he “is requesting for a fee of $26, 278.17 for federal court services.” Dkt. No. 34 at 2.

         As provided by a contingency fee agreement, Mr. Skaar now seeks approval under Section 406(b) of the Social Security Act to pay him attorneys' fees in the amount of $26, 718.17, which represents 25% of the past-due benefits awarded to Plaintiff. See Id. at 7.

         The Commissioner timely filed a response, see Dkt. No. 35, and the motion is now ripe for decision.

         Legal Standards and Analysis

         “Sections 406(a) and 406(b) of the Social Security Act provide for the discretionary award of attorney's fees out of the past-due benefits recovered by a successful claimant in a Social Security action.” Murkeldove v. Astrue, 635 F.3d 784, 787 (5th Cir. 2011). While Section 406(a) governs the award of attorneys' fees for representing a claimant in administrative proceedings, Section 406(b) governs the award of attorneys' fees for representing a claimant in court. See Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002). Section 406(b) provides:

Whenever a court renders a judgment favorable to a claimant under this subchapter 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); see also Murkeldove, 635 F.3d at 788 (citing Gisbrecht, 535 U.S. at 800); accord Jackson v. Astrue, 705 F.3d 527, 531 (5th Cir. 2013) (holding that “§ 406(b) fees are authorized in cases where an attorney obtains a favorable decision on remand”).

         Contingency fee agreements in Social Security cases are unenforceable to the extent that they provide for fees exceeding 25% of past-due benefits. See Gisbrecht, 535 U.S. at 807. Even when contingency fee agreements are within the statutory ceiling, Section “406(b) calls for court review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases.” Id.

         The Commissioner has declined to assert a position on the reasonableness of Plaintiff's fee request on the ground that she is not the true party in interest but notes that “[c]ontrolling authority directs the Court to resolve the question of whether Mr. Skaar's requested fee is reasonable.” Dkt. No. 35 at 1, 2. As the United States Court of Appeals for the Fifth Circuit has noted, the Commissioner has no direct financial stake in the fee determination; rather, her role resembles that of a “trustee” for the claimant. See Jeter v. Astrue, 622 F.3d 371, 374 ...


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