BEALER

v.

COMMISSIONER OF SOCIAL SECURITY

FEES PURSUANT TO 42 U.S.C. § 406(b) (Doc. No. 42) FILED: May 15, 2023

THEREON it is ORDERED that the motion is GRANTED.

I. BACKGROUND.

On April 26, 2021, Steven Ray Bealer (“Claimant”) entered into a contingency fee agreement with Shea A. Fugate, Esq., for the purpose of appealing the Commissioner of Social Security’s (“the Commissioner”) denial of Claimant’s request for social security disability benefits. Doc. No. 42-1. In the event that the Commissioner awarded Claimant past-due benefits, then, under the agreement, Claimant agreed to pay Attorney Fugate a fee of twenty-five percent (25%) of the total amount of the past-due benefits ultimately awarded. Id. Claimant filed a complaint on April 26, 2021, alleging that the Commissioner had improperly denied his claims for disability and supplemental security income benefits. Doc. No. 1. On February 28, 2022, on the Commissioner’s unopposed motion (Doc. No. 35), the Court reversed and remanded the matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). Doc. No. 37. Judgment was entered accordingly on March¹, 2022. Doc. No. 39.

Thereafter, Attorney Fugate filed a motion for an award of attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. Doc. No. 40. Attorney Fugate stated that she spent 35.4 hours on this case prior to remand. Id.

On May 23, 2022, the Court granted the motion in relevant part, and awarded a total of $7,832.25 in attorney’s fees under the EAJA. Doc. No. 41. On remand of this matter, the Commissioner determined that Claimant was entitled to disability benefits. Doc. No. 42-2. The Commissioner awarded Claimant past-due benefits in the total amount of $90,611.92. Id. at 5.2

By the present motion, Attorney Fugate seeks authorization to collect a total of $14,820.733 in attorney’s fees from Claimant pursuant to 42 U.S.C. § 406(b), which includes an offset for the EAJA fees previously awarded by the Court. Doc. No. 42, at 2.4 The Commissioner does not oppose the motion. Id. at 8. The matter is ripe for review.

II. APPLICABLE LAW.

Attorney Fugate seeks attorney’s fees pursuant to § 406(b), which provides, in relevant part, as follows: Whenever a court renders a judgment favorable to a claimant . . . 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).⁵ The statute further provides that it is unlawful for an attorney to charge, demand, receive, or collect for services rendered in connection with proceedings before a court any amount more than that allowed by the court. Id. § 406(b)(2). Therefore, to receive a fee under this statute, an attorney must seek court approval of the proposed fee, even if there is a fee agreement between the attorney and the client. In Bergen v. Comm’r of Soc. Sec., 454 F. 3d 1273 (11th Cir. 2006), the Eleventh Circuit held that § 406(b) “authorizes an award of attorney’s fees where the district

F. 2d 367, 371 (2d Cir. 1990). However, a court cannot rely solely upon the existence of a contingency fee agreement. See Gisbrecht v. Barnhart, 535 U.S. 789, 807–08 (2002). Rather, a court must review the contingency fee agreement as an independent check to assure that it yields a reasonable result in each particular case.

Id. In determining whether the amount sought is reasonable, the court may consider the following factors: (1) the character of the attorney’s representation and the result achieved; (2) the number of hours spent representing the claimant and the attorney’s normal billing rate; (3) the risk involved in taking claimant’s case on a contingency basis; and (4) whether the attorney was responsible for delaying the proceedings. See id. at 808; see also McGuire v. Sullivan, 873 F. 2d 974, 981 (7th Cir. 1989); McKee v. Comm’r of Soc. Sec., No. 6:07-cv-1554-Orl-28KRS, 2008 WL 4456453, at *5 (M.D. Fla. Sept. 30, 2008); Yarnevic v. Apfel, 359 F. Supp. 2d 1363, 1365 (N.D. Ga. 2005). The attorney seeking fees under § 406(b) bears the burden of showing that the fee sought is reasonable for the services rendered. Gisbrecht, 535 U.S. at 807 n.17; McKee, 2008 WL 4456453, at *5.

III. ANALYSIS.

Attorney Fugate represented Claimant before this Court and, through her advocacy, achieved a reversal and remand of the Commissioner’s final decision. Doc. Nos. 37, 39. Ultimately, the Commissioner found that Claimant was disabled,

and awarded a total of $90,611.92 in past-due benefits. Doc. No. 42-2. Attorney Fugate is therefore entitled to an award of attorneys’ fees under § 406(b). See Bergen, 454 F. 3d at 1271. Attorney Fugate is entitled to recover up to twenty-five (25%) percent of the past-due benefits awarded, in the amount of $22,652.98. See 42 U.S.C. § 406(b)(1)(A); Doc. No. 42-2. As discussed above, Attorney Fugate has agreed to reduce the fees sought in this case by the fees previously awarded under the EAJA,

and thus seeks a total of $14,820.73 in fees pursuant to § 406(b). Doc. No. 42, at 3. See also Jackson, 601 F. 3d at 1271. Upon consideration, the Court finds the amount Attorney Fugate requests in § 406(b) fees is reasonable. First, Claimant entered a contingency-fee agreement, in which he agreed to pay Attorney Fugate a fee of twenty-five percent (25%) of the total amount of the past due benefits ultimately awarded. Doc. No. 42-1. The presence of the contingency-fee agreement favors a finding that the requested amount is reasonable. See Wells, 907 F. 2d at 371. Second, Attorney Fugate spent approximately 35.4 hours representing Claimant in this Court. See Doc. No. 40.

As a result of the work of counsel, Claimant was successful on remand of this matter. Doc. No. 42-2. Third, there is no evidence that Attorney Fugate caused any delays in this case. And finally, Attorney Fugate undertook significant risk of non-payment by taking this case on a contingency basis after the Commissioner denied Claimant’s request for disability benefits. Under these circumstances, and absent any objection, the Court finds that Attorney Fugate’s request for $14,820.73 under § 406(b) is reasonable in this case.

IV. CONCLUSION.

For the reasons stated herein, it is ORDERED that: 1. Shea A. Fugate’s Unopposed Request for Authorization to Charge a

Reasonable Fee and Memorandum on Reasonable Fees Pursuant to 42 U.S.C. § 406(b) (Doc. No. 42) is GRANTED. 2. Attorney Fugate is authorized to charge and collect from Claimant a total of $14,820.73 under § 406(b).

DONE and ORDERED in Orlando, Florida on May 30, 2023.

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LESLIE AN PRICE

UNITED STATES MAGISTRATE JUDGE

Copies furnished to: Counsel of Record Unrepresented Parties