United States District Court, E.D. Missouri, Eastern Division
MEMORANDUM AND ORDER
L. WHITE UNITED STATES DISTRICT JUDGE.
matter is before the Court on Plaintiffs Attorney's
Motion for an Award of Attorney Fees Under 42 U.S.C. §
406(b) (ECF No. 26). In the motion, Plaintiffs attorney seeks
$8, 622.00 in fees from the past-due benefits awarded to the
Plaintiff for services performed in successfully appealing
the Commissioner's Social Security determination.
Defendant has filed a response stating she has no objection
to an award of attorney's fees in the amount requested
(ECF No. 28).
13, 2015, United States Magistrate Judge Thomas C. Mummert,
III, (retired) reversed and remanded this case to the
Commissioner for further proceedings. (ECF Nos. 21, 22)
Counsel for Plaintiff was also awarded attorney's fees in
the amount of $3, 821.88 under the Equal Access to Justice
Act ("EAJA"), 28 U.S.C. § 2412. (ECF No. 25)
On remand, the ALJ found Plaintiff disabled in a favorable
decision dated August 23, 2016. (PL's Ex. 1, ECF No.
26-3) The ALJ determined that Plaintiff had been disabled
since June 15, 2010 and awarded past due benefits under Title
II of the Social Security Act. (PL's Ex. 1, ECF No. 26-3;
PL's Ex. 2, ECF No. 26-4) The Notice of Award also
withheld 25%, or $10, 521.50, from the past due benefits in
the event that the Social Security Administration
("SSA") was required to pay attorney's fees in
accordance with a fee agreement between Plaintiff and his
counsel. (PL's Ex.
No. 26-4) Plaintiffs attorney now requests that the Court
award 25% of the back pay for services rendered in the United
States District Court pursuant to the fee agreement, minus
fees recovered under 42 U.S.C. § 406(a). The case was
reassigned to this Court following Judge Mummert's
retirement. (ECF No. 27)
Under § 406(b) of the Social Security Act:
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[.]
42 U.S.C. § 406(b)(1)(A). Interpreting § 406(b),
the United States Supreme Court in Gisbrecht v.
Barnhart concluded, "§ 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." 535 U.S. 789, 807 (2002). Within the
25% boundary set forth in the statute, "the attorney for
the successful claimant must show the fee sought is
reasonable for the services rendered." Id.
Specifically, courts must look to the contingent fee
agreement; test the agreement for reasonableness; and reduce
the fee, if necessary, "based on the character of the
representation and the results the representative
achieved." Id. at 808.
Plaintiffs counsel has requested attorney's fees under
§ 406(b) in the amount of $8, 622.00, which represents
25% of the total past due benefits minus fees received under
§ 406(a). In support, counsel has submitted the
ALJ's favorable decision, the notice of award of benefits
letter from the SSA, the contingent fee agreement between
Plaintiff and counsel, an itemized invoice for legal
services, and an Executive Summary of the Missouri Bar
Economic Survey Report. (ECF Nos. 26-3 to 26-7) Defendant
does not object to an award under § 406(b) of $8,
independent review of the record in this case, the Court
finds that the § 406(b) request for attorney's fees
is reasonable, and no reduction in the requested amount is
warranted. Therefore, the Court will award Plaintiffs counsel
attorney's fees under § 406(b) in the amount of $8,
622.00, representing 25% of Plaintiff s past due benefits
minus the $1, 899.50 counsel has already received under
§ 406(a). Plaintiffs counsel has acknowledged that she
is obligated to refund to Plaintiff the amount of the smaller
EAJA fee, which in this case was $3, 821.88.
Gisbrecht, 535 U.S. at 796. While Defendant requests
that the Court order Plaintiffs counsel to refund the EAJA
fee to Plaintiff, the Court notes that neither the EAJA nor
§ 406(b) require the Court to take action with regard to
refunding the smaller fee. See, e.g., Gunn v.
Colvin, No. 2:14-CV-20-SPM, 2016 WL 5688613, at *2 (E.D.
Mo. Oct. 3, 2016) ("[T]here is no obligation for the
Court to take any action with respect to the refund.");
Ciecalone v. Colvin, No. 4:I3CV28 NAB, 2014 WL
1375557, at * 4 (E.D. Mo. Apr. 8, 2014) (same). Counsel is
aware that she must refund the amount of the EAJA award to
the Plaintiff, and the Court expects counsel to comply with
IT IS HEREBY ORDERED that Plaintiffs Attorney's Motion
for an Award of Attorney Fees Under 42 U.S.C. § 406(b)
(ECF No. 26) is GRANTED.
FURTHER ORDERED that Defendant shall remit to attorney
Kathleen E. Overton at the Law Offices of Daniel Parmele,
1505 E. Bradford Parkway, Springfield, MO 65804,
attorney's fees in the amount of $8, 622.00.
 Nancy A. Berryhill is now the Acting
Commissioner of Social Security. Pursuant to Rule 25(d) of
the Federal Rules of Civil Procedure, Nancy A. Berryhill
should be substituted for Acting Commissioner Carolyn W.
Colvin as the Defendant in this suit. No further actions
needs to be taken to continue this suit by reason of the last