United States District Court, W.D. Louisiana, Monroe Division
G. JAMES MAG. JUDGE
REPORT AND RECOMMENDATION
L. HAYES UNITED STATES MAGISTRATE JUDGE
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]). As detailed below, it is recommended that
the motion be GRANTED, as modified.
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]).
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).
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).
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).
April 20, 2018, plaintiff's counsel 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 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.
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 § 406. These fees will not exceed
25% of the back due benefits due me and my ...