United States District Court, M.D. Georgia, Macon Division
REPORT AND RECOMMENDATION
Charles H. Weigle, United States Magistrate Judge.
the Court is an application for attorney's fee filed by
Plaintiff Brenda Mimbs. Doc. 20. On remand from this Court,
Plaintiff was awarded a total sum of $46, 138.00 in past-due
benefits. Doc. 20, p. 2. Plaintiff's counsel now seeks to
recover $3, 880.00 for his 19.4 hours worked in this
action. Id. at 3.The Commissioner does
not generally oppose this award of fees for Plaintiff's
counsel, but does request a slight reduction of the total
amount awarded. Doc. 23. For the following reasons, it is
RECOMMENDED that Plaintiff's Motion for
Attorney's Fees (Doc. 20) be GRANTED, in
the amount of $3, 700.
Social Security cases, prevailing parties may be awarded
attorney's fees as part of the judgment, not in excess of
“[twenty-five 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); Hosley v.
Colvin, No. 5:09-CV-379 (MTT), 2016 WL 7394532, at *1
(M.D. Ga. Dec. 21, 2016). Attorney's fees pursuant to
§ 406(b) may be awarded “where the district court
remands the case to the Commissioner of Social Security for
further proceedings, and the Commissioner on remand awards
the claimant past-due benefits.” Bergen v.
Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir.
fees under § 406(b) do not displace contingent-fee
agreements between attorneys and plaintiffs, but
“§ 406(b) calls for court review of such
arrangements as an independent check, to assure that they
yield reasonable results in particular cases.”
Gisbrecht, 535 U.S. at 807; Garland v.
Colvin, No. 5:12-CV-509 (MTT), 2016 WL 1181699, at *2
(M.D. Ga. Mar. 25, 2016). Before granting a motion for
attorney's fees, a court must determine the
“reasonableness of the fee requested” and may
request the counsel to submit “a record of the hours
spent representing the claimant and a statement of the
lawyer's normal hourly billing charge for
noncontingent-fee cases.” Gisbrecht, 535 U.S.
at 808. Courts may also review the character of the
representation and the results achieved. Id.;
Garland, 2016 WL 1181699, at *2. In the absence of a
contingent-fee agreement, courts apply a fee calculation
method called a “lodestar” method where the
number of hours reasonably devoted to each case is multiplied
by a reasonable hourly fee. See Gisbrecht, 535 U.S.
19, 2015, the District Court entered judgment for Plaintiff
with instructions to remand for further proceedings. Doc. 19.
On remand, Plaintiff's application was granted and
Plaintiff was awarded past-due benefits totaling $46, 138.00.
Doc. 20-2, p. 5. Twenty-five percent, or $11, 534.50, was
withheld from Plaintiff's past-due benefits for the
possible payment of Plaintiff's attorney's fees.
Id. Of the amount withheld, Plaintiff
contends that the Commissioner will pay $6, 000.00 to the
attorney who represented Plaintiff before the Commissioner.
Doc. 20, p. 2-3; Doc. 20-2, p. 5. With the remaining money
withheld from Plaintiff's past-due benefits, present
counsel seeks attorney's fees of $3, 880.00 for hours
worked on Plaintiff's appeal. Doc. 20, p. 3.
attorney has submitted that his hourly rate is $200 per hour.
Doc. 20, p. 3. Counsel states he has been admitted to
practice law in the State of Georgia since 1986 and that for
the last twenty-five years his primary practice has been in
Social Security law. Doc. 20, p. 3. Because Plaintiff's
claim for benefits was initially denied, it is unlikely
Plaintiff would have recovered the past-due benefits without
the attorney's efforts in this Court. Additionally, there
is no evidence counsel was responsible for any undue delay in
advocating for Plaintiff's benefits. The submitted hourly
rate is reasonable for an attorney with similar experience.
the submitted hourly rate is reasonable, and the fee
requested is less than twenty-five percent of the money
withheld, the Commissioner objects to some of counsel's
time spent. Doc. 23, pp. 2-3. Specifically, the Commissioner
objects to counsel's attorney's fees for time spent
on administrative tasks and time spent requesting extensions
that were sought for counsel's convenience. Id.
at 2; Doc. 20-1, p. 1; see Docs. 12, 15, 22.
of a clerical nature are not compensable as attorney's
fees. Fischer v. Berryhill, 2017 WL 1078446, at *3
(N.D. Fla. Feb. 21, 2017), report and recommendation
adopted, 2017 WL 1074934 (N.D. Fla. Mar. 21, 2017);
Gates v. Barnhart, 325 F.Supp.2d 1342, 1348 (M.D.
Fla. 2002). To the extent that counsel seeks compensation for
the receipt and printing of certain documents, those tasks
are clerical in nature and warrant a reduction. Doc. 20-1, p.
1, 0.4 hours on 5/8/2014, 0.4 hours on 5/9/2014. The
Commissioner also contests counsel's receipt of documents
dated July 9, 2014. Doc 23, p. 2. As this time log also
contained counsel's review of the transcripts, the Court
cannot find that this time log was purely clerical in nature
or unreasonable. Doc. 20-1, p. 1. In summary, to the extent
that counsel's log contained requests for compensation
based on “receipt of Defendant's answer” and
“print administrative transcript, ” a reduction
is warranted. Id.
the compensation sought for time spent requesting extensions,
some of counsel's time spent seeking extensions is not
compensable. Courts have awarded attorney's fees were the
time spent requesting extensions was minimal and when the
extensions were reasonably necessary for the counsel to
prepare for the plaintiff's case. Holmes v.
Astrue, 2010 WL 3220085, at *2 (D.S.C. Aug. 12, 2010);
see Elijaeh M.V. v. Astrue, 2010 U.S. Dist. LEXIS
67616 at *6-*7, 2010 WL 2465440 (E.D. Cal. June 15, 2010);
see Rodriguez v. Astrue, 2009 U.S. Dist. LEXIS
126311 at *5 (D.Conn. Sept. 3, 2009). Other courts have not
awarded attorney's fees for time seeking extensions where
there have been numerous extensions without reasonable
reasons for the extensions. Holmes, 2010 WL 3220085,
case, counsel filed two motions for extension. Docs. 12, 15,
Counsel's first request for extension, dated August 11,
2014, was requested due to counsel's heavy caseload. Doc.
12. Counsel's second request for extension, dated October
17, 2014, provided no reason for the requested extension.
Doc. 15. This Court, however, generally and routinely grants
motions for extensions, and cannot deem that the time spent
preparing and filing those motions was unreasonable. The time
counsel spent in “receipt” of Court documents
“referring” or “granting” extensions,
however, is of a clerical nature and is not compensable. Doc.
20-1, p. 1 (8/11/14 time log, 8/12/14 time log).
for the reasons stated above, it is
RECOMMENDED that Counsel's request for
attorney's fees be GRANTE ...