United States District Court, W.D. Kentucky, Owensboro Division
ANTHONY D. TRITCHLER PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT
MEMORANDUM OPINION AND ORDER
Brent Brennenstuhl United States Magistrate Judge
the Court is the motion of Plaintiff, Anthony D. Tritchler,
pursuant to 42 U.S.C. § 406(b), for the award of
attorney fees (DN). Defendant, Nancy A. Berryhill,
Commissioner of Social Security (“Commissioner”),
has filed a response indicating she has no objection (DN 27).
Given the circumstances, there is no need to wait for the
reply to expire to grant Plaintiff's motion. Pursuant to
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, the parties have
consented to the undersigned United States Magistrate Judge
conducting all further proceedings in this case, including
issuance of a memorandum opinion and entry of judgment, with
direct review by the Sixth Circuit Court of Appeals in the
event an appeal is filed (DN 16). This matter is now ripe for
10, 2013, Plaintiff filed a complaint seeking judicial review
of the final decision of the Commissioner pursuant to 42
U.S.C. § 405(g) (DN 1). The Commissioner filed an answer
and a copy of the administrative record (DN 13, 14).
Plaintiff filed a Fact and Law Summary setting forth his
challenges to the final decision of the Commissioner (DN 17,
18). Thereafter, the Commissioner filed a motion for judgment
under sentence four of 42 U.S.C. § 405(g) (DN 23).
Plaintiff did not object to Defendant's motion.
undersigned magistrate judge issued a memorandum opinion and
order that granted the Commissioner's motion, reversed
the final decision of the Commissioner, and remanded the case
to the Commissioner, pursuant to sentence four of 42 U.S.C.
§ 405(g), for further administrative proceedings and a
new decision (DN 24). The judgment was entered on February 7,
2014 (DN 25).
February 2, 2017, Plaintiff filed his motion for an award of
attorney fees under 42 U.S.C. § 406(b) (DN 26).
Plaintiff seeks approval of attorney fees in the amount of
$16, 334.00 (DN 26). The Commissioner does not oppose an
award of attorney fees (DN 27).
to 42 U.S.C. § 406(b), attorney fees are properly
awarded to a claimant who succeeds on her Social Security
Appeal before the federal court. Allan v.
Commissioner, No. 10-11651, 2014 WL 1818110, at *1 (E.D.
Mich. May 7, 2014). A judgment issued by the federal court
either awarding benefits or remanding the matter to the
Commissioner may be considered “favorable” within
the meaning of the statute, so long as the claimant is
awarded benefits “by reason of” the judgment.
See Nolan v. Comm'r of Soc. Sec., No. 4:11-CV-5,
2013 WL 5937908, at *1 (E.D. Tenn. Nov. 5, 2013) (citing
Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277
(11th Cir. 2006)). Notably, the statute expressly directs the
fee award is not to exceed 25% of the total past-due benefits
to which the claimant is entitled:
(b) Fees for representation before court
(1)(A) 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, and the Commissioner of Social
Security may, notwithstanding the provisions of section
405(I) of this title, but subject to subsection (d) of this
section, certify the amount of such fee for payment to such
attorney out of, and not in addition to, the amount of such
past-due benefits. In case of any such judgment, no other fee
may be payable or certified for payment for such
representation except as provided in this paragraph.
42 U.S.C. § 406(b)(1)(A). The Supreme Court has
explained, A' 406(b) does not displace contingent-fee
agreements as the primary means by which fees are set for
successfully representing Social Security benefits claimants
in court. Rather, § 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, 807 (2002)
(footnote omitted)). Notably, fee awards may be made under
both EAJA and § 406(b), but when this happens,
“the claimant's attorney must refund to the
claimant the amount of the smaller fee.”
Gisbrecht, 535 U.S. at 796.
may award attorney fees only for work performed before the
court. Horenstein v. Sec'y of Health & Human
Servs., 35 F.3d 261, 262 (6th Cir. 1994). Due deference
should be given to the expression of the intentions of client
and attorney in setting fees. Rodriquez v. Bowen,
865 F.2d 739, 746 (6th Cir. 1989). A 25% fee agreement
between attorney and client should not be viewed as
reasonable per se, but such a fee should be accorded a
rebuttable presumption of reasonableness. Id. If
deductions are to be made in the fee, they should generally
be one of two types: (1) deductions occasioned by
counsel's improper conduct or ineffectiveness, or (2)
deductions to prevent a windfall resulting from either an
inordinately large award, or minimal effort expended.
requests that this Court approve an award of attorney's
fees pursuant to 42 U.S.C. § 406(b) (DN 26). In support
of her fee ...