United States District Court, S.D. Texas, Galveston Division
CHRISTOPHER JAMES LITTLE Plaintiff.
ANDREW SAUL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION Defendant.
MEMORANDUM AND RECOMMENDATION
M. EDISON UNITED STATES MAGISTRATE JUDGE.
the Court is Plaintiffs Motion for Attorney Fees Pursuant to
42 U.S.C. § 406(b) ("Motion for Attorney
Fees"). See Dkt. 20. Counsel for Plaintiff Christopher
James Little ("Little") requests $18, 534.50 in
fees for work performed in obtaining a favorable remand order
in this social security matter. After reviewing the record
and the law, the Court recommends that fees be awarded in
accordance with this opinion.
October 2017, Little filed a complaint in federal district
court seeking to overturn the Commissioner's decision
denying his claim for disability benefits under the Social
Security Act. As the case progressed, Little's attorney
filed a motion for summary judgment, along with a 32-page
supporting brief. The Court granted Little's motion for
summary judgment, reversed the decision of the Commissioner,
and remanded the matter to the Commissioner for an award of
disability insurance benefits. A few weeks later, the Court
ordered the Commissioner to pay Little an attorney's fee
of $7, 440.39 under the Equal Access to Justice Act
remand, an Administrative Law Judge of the Social Security
Administration issued a decision in favor of Little, awarding
him past-due disability insurance benefits. The Commissioner
withheld $18, 534.50, representing 25 percent of the total
award, for payment of approved attorney's fees.
counsel now seeks to trade in their modest EAJA fee for
attorney fees under 42 U.S.C. § 406(b) in the amount of
$ 18, 534.50. This figure represents the exact amount
Little's counsel would be entitled to under the
contingency agreement Little agreed to at the outset of this
matter. See Dkt. 20-3 at 2 (providing that the law firm is to
receive 25% of the past-due benefits).
406(b) provides that "[w]henever a court renders a
judgment favorable to a [social security benefits] 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," but the fee may
not exceed "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). The fee is
payable "out of, and not in addition to, the amount of
[the] past-due benefits." Id.
406(b) does not replace contingency fee agreements between
claimants and their counsel. Rather, Section 406(b)
"calls for court review of such arrangements as an
independent check, to assure that they yield reasonable
results in particular cases." Gisbrecht v.
Barnhart, 535 U.S. 789, 808 (2002). Contingency
agreements are unenforceable to the extent that they provide
for fees exceeding 25 percent of past due benefits. See
Id. Within the 25 percent boundary, an attorney for
a successful claimant must show that the fee sought is
reasonable given the services rendered. See Id.
"If the benefits are large in comparison to the amount
of time counsel spent on the case, a downward adjustment is
in order to disallow windfalls for lawyers." Jeter
v. Astrue, 622 F.3d 371, 379 (5th Cir. 2010) (internal
quotation marks and citation omitted). A district court has
wide discretion in approving or discounting the amount of
attorney's fees. See Id. at 376. Ultimately, the
claimant's attorney bears the burden of persuasion on the
reasonableness of the fees sought. See Gisbrecht, 535 U.S. at
reasonableness of attorney's fees awarded pursuant to a
fee-shifting statute is generally determined by using the
lodestar method. See Id. at 801. The lodestar method
consists of the No. of hours reasonably expended in a case
multiplied by a reasonable hourly rate. See Hensley v.
Eckerhart, 461 U.S. 424, 433 (1983). Noting that Section
406(b) is not a fee-shifting statute, the Supreme Court has
expressly rejected the use of the lodestar method as the
starting point in determining the reasonableness of a fee
under Section 406(b). See Gisbrecht, 535 U.S. at 801.
determining whether a fee award is reasonable under Section
406(b), the Fifth Circuit has instructed district courts to
look at several non-exhaustive factors, including "risk
of loss in the representation, experience of the attorney,
percentage of the past-due benefits the fee constitutes,
value of the case to a claimant, degree of difficulty, and
whether the client consents to the requested fee."
Jeter, 622 F.3d at 382 (citation omitted). The Court will
examine these factors below.
begin, the Court takes note that the contingency agreement
between Little and his lawyer sets the lawyer's
compensation at 25 percent of any recovery of past-due
benefits, which is presumptively enforceable under Section
the Court observes that Little's counsel faced a
substantial risk of loss, as Little had lost at all levels of
the administrative proceedings prior to bringing a federal
lawsuit. This is important because "the Fifth Circuit
and district courts in this circuit have acknowledged the
high risk of loss inherent in Social Security appeals and the
fact that a particular claimant's attorney often is not
compensated at all for Social Security work in federal
court." Hartz v. Astrue, No. 08-4566, 2012 WL
4471846, at *6 (E.D. La. Sept. 12, 2012) (collecting cases).
See also Prude v. U.S. Com'r Soc. Sec. Admin.,
No. ll-CV-1266, 2014 WL 249033, at *2 (W.D. La. Jan. 22,
2014) (recognizing that the "the lack of compensation in
the many unsuccessful cases" weighed in favor of
awarding fees to successful claimant's attorney);
Charlton v. Astrue, No. 3:10-CV-0056-O-BH, 2011 WL