MIKEAL

v.

COMMISSIONER OF SOCIAL SECURITY

This cause is before the Court on Richard A. Culbertson’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. 25; “Motion”), filed August 24, 2021. Plaintiff’s counsel seeks an award of $8,195.70 pursuant to 42 U.S.C. § 406(b). See Motion at 1, 7. This amount equals twenty-five percent of Plaintiff’s past-due benefits ($50,038.00 in benefits; $12,509.50 in fees) minus the $4,313.80 previously awarded to him pursuant to the Equal Access to Justice Act (“EAJA”). Motion at 2. The Notice of Award represents that the

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). The statute does not impose a twenty-five percent cap on the aggregate of attorney’s fees awarded under § 406(a)—which are awarded for work done at the administrative level—and § 406(b). Culbertson v. Berryhill, 139 S. Ct. 517, 519 (2019). Instead, “the 25% cap applies only to fees for representation before the court, not the agency.” Id. at 522. The twenty-five percent ceiling was meant “to protect claimants against ‘inordinately large fees’ and also to ensure that attorneys representing successful claimants would not risk ‘nonpayment of [appropriate] fees.’” Gisbrecht v. Barnhart, 535 U.S. 789, 805 (2002) (citations omitted). “[Section] 406(b) does not displace contingent-fee agreements as the primary means by

Factors to consider in assessing the reasonableness of the fee include whether there was unreasonable delay in the litigation caused by the attorney, the quality of the representation, the size of the award in relationship to the time spent on the case, and the likelihood of the claimant prevailing. See Gisbrecht, 535 U.S. at 808. Additionally, an attorney who successfully claims both EAJA fees from the United States and an award under 42 § U.S.C. 406(b) must refund “to the claimant the amount of the smaller fee.” Id. at 796. Here, counsel indicates he “provided legal service as agreed, and this Court reversed the decision of the Commissioner . . . and remanded the case for further administrative proceedings[,] which ultimately resulted in an award of past-due Social Security Disability benefits in the amount of $50,038.00[ ].” Motion at 2 (citations omitted). Plaintiff and counsel entered into a fee arrangement providing for a fee of twenty-five percent of past-due benefits. Id.;

see Retainer Agreement-Federal Court Appeal (Doc. No. 25-1). Upon review of the representations made in the Motion and all supporting documentation submitted by counsel, and upon consideration of the quality of the representation and the results achieved, the undersigned finds the amount requested is reasonable. For the foregoing reasons, it is ORDERED: 1. Richard A. Culbertson’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. 25) is GRANTED. 2. Plaintiffs counsel, Richard A. Culbertson, is awarded $8,195.70 pursuant to 42 U.S.C. § 406(b), which shall be paid from the past-due benefits awarded to Plaintiff. The Commissioner shall now pay Mr. Culbertson the sum of $8,195.70 from the past-due benefits withheld. Any remainder of the withheld past-due benefits shall be paid directly to Plaintiff. 3. The Clerk of the Court is directed to enter judgment accordingly and close the file. DONE AND ORDERED in Jacksonville, Florida on September 28, 2021.

Neate Row Rice

JAMES R. KLINDT

United States Magistrate Judge keh Copies to: Counsel of Record