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Mimbs v. Colvin

United States District Court, M.D. Georgia, Macon Division

February 26, 2018

BRENDA MIMBS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Defendant.

         SOCIAL SECURITY APPEAL

          REPORT AND RECOMMENDATION

          Charles H. Weigle, United States Magistrate Judge.

         Before 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.[1] 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.

         LEGAL STANDARD

         In 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. 2006).

         Attorney's 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. at 797.

         On May 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.[2] 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.

         Plaintiff's 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.

         While 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.

         Costs 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.

         Regarding 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, at *2.

         In this 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).

         Accordingly, for the reasons stated above, it is RECOMMENDED that Counsel's request for attorney's fees be GRANTE ...


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