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Tamara B. v. Berryhill

United States District Court, D. Vermont

June 22, 2018

TAMARA B., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant.

          DECISION ON PLAINTIFF'S MOTION FOR AWARD OF ATTORNEY'S FEES PURSUANT TO 42 U.S.C. § 406(b) (Doc. 27)

          Geoffrey W. Crawford, Chief Judge

         Counsel for the Plaintiff in this matter seeks approval of a fee pursuant to 42 U.S.C. § 406(b) for his representation of the Plaintiff in proceedings before this court. He seeks an award in the amount of $10, 356.62, which represents 25% of the $61, 201 of past-due benefits he recovered for the Plaintiff--that is, $15, 300.25-offset by a $4, 943.63 fee award already granted to him by this court pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"). Counsel seeks this fee in addition to, and with no offset for, the $6, 000 contingency fee approved by the Commissioner pursuant to 42 U.S.C. § 406(a) for Counsel's representation of the Plaintiff in administrative proceedings. For the reasons set forth herein, the court approves a fee award in the amount of $4, 356.62, which represents 25% of the gross recovery with offsets for both the EAJA and 406(a) fee awards.

         BACKGROUND

         Plaintiff applied for benefits on July 13, 2011, and did not initially succeed. The administrative decision denying her benefits became final on June 6, 2014. She sought judicial . review of the administrative decision and prevailed, winning a judgment from this court on December 14, 2015 remanding her case for further administrative proceedings. After the court entered judgment in favor of the Plaintiff, the parties stipulated to an EAJA fee award in the amount of $4, 943.63 to Plaintiffs counsel, Lon T. McClintock of McClintock Law Office, P.C. of Bennington, Vermont.

         On remand, the Plaintiff was awarded $61, 201 in past due benefits. The Social Security Administration awarded the Plaintiffs counsel $6, 000 in fees pursuant to 42 U.S.C. § 406(a) for his representation of the Plaintiff in administrative proceedings.

         The Plaintiff and her counsel agreed to "a fee approved by the Federal Court, not to exceed 25% of [the Plaintiffs] past-due benefits." See Doc. 27-2 at 2.

         ANALYSIS

         I. Applicable Law

         42 U.S.C. § 406(b)(1)(A) 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....

         In this case, 25% of the gross recovery of past-due benefits is $15, 300.25, so that is the maximum fee award permitted by § 406(b). The Plaintiff and her counsel acknowledge that there should be an offset from this figure for the EAJA fee of $4, 943.63 already awarded to the Plaintiffs attorney, and that the additional fee awardable under § 406(b) is no greater than $10, 356.62. That is the amount the Plaintiffs counsel seeks.

         The Commissioner argues that this figure should also be subject to an offset for a fee award approved by the Social Security Administration pursuant to 42 U.S.C. § 406(a). Section 406(a) authorizes the Social Security Administration to award an attorney a fee for representation of a claimant in administrative proceedings, and caps that fee at the lesser of 25% of the recovery or $6, 000. See 42 U.S.C. § 406(a)(2)(A); Maximum Dollar Limit in the Fee Agreement Process, 74 Fed. Reg. 6080 (Feb. 4, 2009). In the present case, the Plaintiffs counsel was awarded a § 406(a) fee of $6, 000.

         If, as the Plaintiff and her counsel contend, a § 406(a) award does not count toward the 25% cap, the Plaintiffs counsel could be entitled to a reasonable award of up to $10, 356.62. If, as the government contends, a § 406(a) award does count toward the 25% cap, the $6, 000 offset for the § 406(a) award in this case would permit a maximum fee award of $4, 356.62.

         The question before the court is whether the 25% caps imposed by §§ 406(a) and 406(b) function as an aggregate 25% cap on an attorney's total fee for representing a claimant in both administrative and judicial proceedings, or as separate caps that do not affect each other. There is no controlling Second Circuit precedent on this question, and nationally, there is a long-standing and ever-deepening circuit split on this question. Compare Morris v. Soc. Sec. Admin.,689 F.2d 495, 497-98 (4th Cir. 1982) (interpreting the statutes to impose an aggregate 25% cap), Dawson v. Finch,425 F.2d 1192, 1195 (5th Cir. 1970) (same), Guido v. Schweiker,775 F.2d 107, 108 (3d Cir. 1985) (same, though arguably in dicta and in a conclusory fashion with no supporting analysis), and Wood v. Comm V of Soc. Sec,861 F.3d 1197, 1206 (11th Cir. 2017) (following Dawson, the Fifth Circuit case that governed at the time of the creation of the Eleventh Circuit, as the Eleventh Circuit customarily does), with Clark v. Astrue,529 F.3d 1211, 1218 (9th Cir. 2008) (holding ...


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