United States District Court, District of Columbia
E. BOASBERG United States District Judge
Lakia Smith obtained a fully favorable decision for Social
Security Disability (SSD) and Supplemental Security Income
(SSI) benefits. She now seeks attorney fees totaling $24,
811.75 pursuant to Section 406(b) of the Social Security Act.
This amount, which represents 25% of her past-due benefits
and is the maximum percentage allowable under the statute, is
not opposed by the Government. Concluding that Plaintiff s
contingent-fee agreement with her attorney is reasonable, the
Court will grant her Motion and award Smith $16, 761.75,
which equals the full sum minus a prior Equal Access to
Justice Act (EAJA) award.
September 2004, Plaintiff filed for SSD and SSI benefits, but
her initial application and reconsideration were both denied.
See ECF No. 40 (Motion) at 2, 5. In 2008, after an
Administrative Law Judge ruled that she was not disabled and
the Appeals Council denied her request for review, Smith
retained counsel under a contingency-fee agreement that
entitled counsel to 25% of any recovered benefits.
See Mot, at 1-2; ECF No. 40-1 (Fee Agreement). She
then filed suit in 2011, see ECF No. 1 (Complaint), which
resulted in this Court's remanding the matter to the
Appeals Council. See ECF No. 31 (Order). The Court
subsequently awarded her $8, 050 in attorney fees under the
EAJA, 28 U.S.C. § 2412, but instructed her to renew her
motion for additional fees if she prevailed on remand.
See ECF No. 39 (Order) at 2. On September 24, 2015,
Plaintiff received a Fully Favorable Decision. See
ECF No. 40-2 (Fully Favorable Decision) at 1. She obtained a
Notice of Award for herself on January 4, 2016, and for her
children on July 2, 2016. See Mot. at 2-3; ECF No. 43
(Response) at 1. Plaintiff now files a Motion for Attorney
Fees under 42 U.S.C. § 406(b) to request $24, 811.75
-25% of her past-due benefits.
counsel expended 55 hours on her suit in federal court and
over 200 hours on her claim at all levels. See ECF
No. 44 (Reply) at 2; Mot. at 5. Counsel has been an attorney
for 33 years, and his normal billing rate is $450 per hour.
See ECF No. 40-5 (Declaration of Elliot Andalman),
¶¶ 1, 3-9. He has a practice dedicated to
disabilities law and has been involved with Social Security
claims as a mentor, faculty member, lobbyist, and board
member. LI, ¶¶9, 11. Defendant does not take a
position on whether the request is reasonable, but notes that
it amounts to an hourly court rate of $451.12 and that the
$8, 050 EAJA award should be deducted. See Resp. at
4. Plaintiff does not oppose such deduction, which would
yield a total fee of $16, 761.75. See Reply at 4 n.4.
§ 406(b) of the Social Security Act, the court may award
an attorney who successfully represents a claimant in court
"a reasonable fee for such representation, not in excess
of 25 percent of. .. past-due benefits." 42 U.S.C.
§ 406(b)(1)(A). Section 406(b) is designed to
"control, not to displace, fee agreements between Social
Security benefits claimants and their counsel."
Gisbrecht v. Barnhart, 535 U.S. 789, 793 (2002).
Specifically, § 406(b) requires a court to review
"such arrangements as an independent check, to assure
that they yield reasonable results in particular
cases." LI at 807 (emphasis added). Where the
contingent-fee arrangement falls within the statutory
maximum, the court determines its reasonableness based on the
particulars of the case. Buljina v. Astrue, 828
F.Supp.2d 109, 114 (D.D.C. 2011). The court may reduce the
award if the arrangement is not reasonable - e.g., if the
representation is substandard, the attorney delays the case
for the benefits to accrue, or the compensation is too large
relative to the time spent on the case. Gisbrecht,
535 U.S. at 808 (citations omitted). Courts will also reduce
attorney fees based on the attorney's risk of loss, her
expertise in Social Security cases, and the difficulty of the
case. Jeter v. Astrue, 622 F.3d 371, 376 (5th Cir.
2010); Greenberg v. Colvin, No. 13-1837, 2015 WL
4078042, at *7 (D.D.C. July 1, 2015); Buljina, 828
F.Supp.2d at 113-14.
contingent-fee arrangement of 25% is the same as the
statutory limit prescribed by § 406(b). As the Court
must next look at the reasonableness of the arrangement, it
considers the following factors in turn: (1) the quality of
representation; (2) whether the attorney delayed the case to
allow the benefits to accrue over a longer period; (3)
whether there was a risk of loss; (4) the difficulty of the
case; and (5) the size of the compensation relative to the
time spent on the case.
Quality of Representation
quality of the representation in this case was not
substandard. Prior to retaining an attorney, Plaintiff had
been unsuccessful in her attempts to obtain SSD or SSI
benefits. See Mot, at 2. Once counsel became
involved, he was able to secure a substantial award. See
Crawford, 586 F.3d at 1151 (describing counsel's
performance as "excellent" for securing favorable
result). Representation that yields a favorable decision is
precisely the type of result plaintiffs seek and that a
contingent-fee arrangement makes available to previously
unsuccessful plaintiffs. The Court thus finds that the
quality of representation was solid.
counsel, moreover, was not responsible for delaying the case.
See Lasley v. Comm'r of Social Security, 771
F.3d 308, 310 (6th Cir. 2014) (holding contingent-fee
arrangement unreasonable where attorney delayed filing §
406(b) motion). Attorneys should not delay proceedings so
that benefits accrue over an extended period of time.
Gisbrecht, 535 U.S. at 808. Counsel here did not
delay in filing a § 406(b) motion; indeed, he filed the
motion in 2012, see ECF No. 33, after a remand was ordered
and, per the Court's instructions, renewed the motion
within 60 days of forwarding the Notice of Award to the
Court. See Mot, at 1. Plaintiff received the notices
on January 4, 2016, and on July 2, 2016, and counsel filed
this Motion for Attorney Fees on August 1, 2016. See
Resp. at 1. The Court finds no evidence of undue delay.
Risk of Loss The Court next considers the amount of
risk faced by Plaintiffs counsel. Buljina, 828
F.Supp.2d at 113-14. If "the risk of loss was so low
that the claimant's success was not particular to the
attorney's efforts, " then the contingent-fee
agreement is not reasonable. Jeter, 622 F.3d at 382
n.13. The "greater the risk that the claimant would not
prevail, " the more likely a contingent-fee agreement is
reasonable. Coppett v. Barnhart,242 F.Supp.2d 1380,
1383 (S.D. Ga. 2002); see Claypool v. Barnhart, 294
F.Supp.2d 829, 832 (S.D. W.Va. 2003) (finding substantial
risk of loss where claim was previously denied at four levels
of agency review). Plaintiff was unsuccessful without
counsel: her claim was denied at initial application,
reconsideration, before the ALJ, and by the Appeals Council.
See Mot. at 2, 5. Counsel provided his services
despite these denials and, by using a contingent-fee
agreement, he took "upon [himself] ...