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Coulter v. Colvin

United States District Court, W.D. Kentucky

September 29, 2014

PENNY K. COULTER, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

LANNY L. KING, Magistrate Judge.

This matter is before the Court on the motion and amended motion of Plaintiff's counsel for an award of attorney fees pursuant to 42 U.S.C. § 406(b). Docket Numbers (DN) 19 and 20.[1] Counsel seeks $5, 176.50 for 17.85 hours of work done before this Court that resulted in a remand to the Commissioner for further administrative proceedings and ultimately a fully Plaintiff-favorable decision. The Commissioner agrees that the requested fee is reasonable. DN 25.[2]

The Court will GRANT the motions because the requested fee is reasonable.

Background facts and procedural history

Plaintiff filed a complaint seeking judicial review of the final decision of the Commissioner denying her claim for Title II Social Security disability benefits pursuant to 42 U.S.C. § 405(g). DN 1.

This Court remanded Plaintiff's claim to the Commissioner for further administrative proceedings. DN 15.

Because she was the prevailing party, Plaintiff filed a motion for attorney fees under the Equal Access to Justice Act, 28 U.S.C. § 2412, in the amount of $2, 137.50. DN 16. In addition, Plaintiff moved for leave to re-docket this case for consideration of a fee for services under 42 U.S.C. § 406(b) in the event the proceedings upon remand resulted in a favorable decision. DN 16.

The Commissioner did not oppose the EAJA fee petition and did not respond to the request to re-docket.

The Court granted the EAJA fee petition but denied the motion to re-docket as premature. DN 18.

Upon remand, the Commissioner issued a Plaintiff-favorable decision.

Plaintiff's counsel filed a motion and amended motion for an award of attorney's fees pursuant to 42 U.S.C. § 406(b). DN 19 and 20.

The Commissioner opposed the motions on the ground that they were premature as Plaintiff had not yet received the Notice of Award identifying the amount of Plaintiff's past-due benefits, which is necessary for calculating the statute's maximum fee award of 25 percent of past-due benefits. DN 21.

The Court ruled that: 1) Pursuant to this Court's precedent interpreting Joint Local Rules (LR) 83.11(d), Robertson v. Commissioner, No. 1:07-CV-00064-JHM, 2011 WL 4737603 (W.D.Ky.), Plaintiff's § 406(b) fee petition was not premature; 2) The United States Attorney must submit a "statement of accrued benefits" and respond to the reasonableness of the fee request within 30 days; and 3) "If the United States Attorney has yet to receive all applicable Notices of Award from the Commissioner, the United States Attorney will have to notify the Court of the delay and request a stay of the proceeding pending receipt of the Notices of Award." DN 23, p. 2 quoting Robertson, supra, at *4.

Prior to the running of the Commissioner's 30 days, Plaintiff received and submitted a copy of the Notice of Award. DN 24. The Notice states, among other things, that the Commissioner withheld 25 percent of past-due benefits, or ...


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