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Parrish v. Berryhill

United States District Court, W.D. Louisiana, Monroe Division

May 30, 2018

JEREMY PARRISH
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

          ROBERT G. JAMES MAG. JUDGE

          REPORT AND RECOMMENDATION

          KAREN L. HAYES UNITED STATES MAGISTRATE JUDGE

         Before the undersigned magistrate judge, on reference from the district court, is plaintiff's petition for attorney's fees pursuant to 42 U.S.C. § 406(b) [doc. # 23]. The Commissioner filed a response stating that she did not intend to take a position on plaintiff's motion, but provided information to assist the court in its determination. (Gov.'t Response [doc. # 25]).[1] As detailed below, it is recommended that the motion be GRANTED, as modified.

         Background and Timeline

         On March 12, 2015, Jeremy Parrish, represented by attorney David B. Wilson, filed the instant complaint for review of the Commissioner's denial of social security disability benefits. On June 21, 2016, the court entered judgment reversing and remanding the matter to the Commissioner for further proceedings pursuant to the fourth sentence of 42 U.S.C. § 405(g). (June 21, 2016, Judgment [doc. # 15]). On July 6, 2016, Jesse Lind of the Binder & Binder law firm was substituted as counsel on plaintiff's behalf. [doc. #s 16-17]. On July 21, 2016, plaintiff filed a petition for attorney's fees pursuant to the Equal Access to Justice Act (“EAJA Fee Petition”), which culminated in a November 4, 2016, judgment awarding plaintiff EAJA fees in the amount of $3, 447.50, plus $400 in costs. (Nov. 4, 2016, Judgment [doc. # 22]).

         Furthermore, in the event that plaintiff prevailed at the administrative level upon remand, the court granted counsel an extension of time until 30 days from receipt of the Notice of Award within which to file a fee application under § 406(b). Id.

         Following remand, an ALJ issued a written decision on December 19, 2017, that found plaintiff disabled as of July 25, 2011, within the meaning of the Social Security Act. On March 20, 2018, the Commissioner issued a Notice of Award, which stated, in pertinent part, that

[w]hen a lawyer wants to charge for helping with a Social Security claim, we must first approve the fee. We usually withhold 25 percent of past-due benefits in order to pay the approved lawyer's fee. We withheld $9, 123.00 from your benefits in case we need to pay the lawyer.

(Notice of Award; M/Fees, Exh. C).

         The Notice further specified that the claimant's past due benefits equaled $26, 492.00. Id. In her response to the instant petition, however, the Commissioner clarified that this was a typographical error, and that the claimant's past due benefits totaled $36, 492.00. (Gov.'t Response, pg. 4 n.2).

         On April 20, 2018, plaintiff's counsel[2] filed the instant motion for an attorney fee pursuant to 42 U.S.C. § 406(b) (sometimes referred to herein as “406(b) Fee Motion”). Counsel intimated that, following remand, the Commissioner awarded plaintiff past due benefits, and thus, counsel now seeks to recover the $9, 123.00[3] that is being held by the SSA “to pay the approved lawyer's fee.” Counsel seeks this sum as compensation for work expended on the client's behalf in federal court.

         In further support of the § 406(b) petition, counsel submitted a Retainer Agreement and Assignment (“Contract”) executed by plaintiff on February 18, 2015. (Contract; M/406(b) Fees, Exh. A). The Contract provides, inter alia, that,

[i]f the case is remanded by the United States District Court to the Social Security Administration for review of additional testimony, and I am awarded past due benefits by the Appeals Council or an Administrative Law Judge after an additional hearing, the [LAW OFFICES - HARRY J. BINDER AND CHARLES E. BINDER, P.C.] may apply for fees to [the] U.S. District Court under ยง 406. These fees will not exceed 25% of the back due benefits due me and my ...

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