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Porter v. Commissioner of Social Security

July 10, 2009

THEODORE PORTER, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge

MEMORANDUM- DECISION & ORDER*fn1

Presently before the Court is a Motion for Attorney's Fees pursuant to 42 U.S.C. § 406(b), filed by Plaintiff's counsel, Mark A. Schneider, Esq. ("Counsel"). Dkt. No. 22. Counsel originally filed the motion on April 6, 2009. Dkt. No. 19. However, the Court was unable to consider the motion at that time because Counsel failed to file a supporting memorandum of law; his affidavit improperly contained legal argument; and several exhibits were missing. See Dkt. No. 21.

Counsel was ordered to correct these deficiencies. Dkt. No. 21. Defense counsel was ordered to submit a letter indicating no opposition if Defendant had no intention of opposing the motion. Id.

On April 28, 2009, Counsel re-filed the motion. Dkt. No. 22. He included a memorandum of law, a revised affidavit, and additional exhibits. Id. On May 6, 2009, defense counsel submitted a letter indicating no opposition. Dkt. No. 25. For the reasons set forth below, the motion is granted, but modified by the following discussion.

I. Background

Following a decision by the Commissioner of Social Security to deny Plaintiff disability benefits, Plaintiff retained Counsel to represent him on or about September 18, 2006. Dkt. No. 22-6 at ¶1. On September 25, 2006, Counsel filed a civil action on Plaintiff's behalf against Defendant, the Commissioner of Social Security, seeking review under 42 U.S.C. § 405(g). Dkt. No. 1. On September 17, 2007, the Court remanded the matter to the Defendant. Dkt. No. 15.

On October 9, 2007, the Court approved a stipulation that awarded Counsel $4,758.00 in fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. Dkt. No. 18.

On December 25, 2007, Plaintiff and Counsel entered into a fee agreement ("First Fee Agreement"). Dkt. No. 22-2, Ex. A. This agreement provided that if Plaintiff's claim was favorably decided by the Social Security Administration ("SSA"), Plaintiff would pay Counsel a fee equal to 25% of the past-due benefits resulting from the claim or $5,300.00, whichever was the lesser amount. Id. at 1.

On June 25, 2008, an ALJ determined that Plaintiff was disabled. Dkt. No. 22-2, Ex. B. The ALJ did not approve the First Fee Agreement because Plaintiff was previously represented by another attorney, Christine DiMuzio Sorochen, who did not waive her fee. Dkt. No. 22-2, Ex. C at p. 1. The ALJ advised Counsel that he could ask for review of the disapproval of the fee agreement, or he must file a fee petition if he wanted to charge and collect a fee. Id. at pp. 1-2.

On July 23, 2008, Plaintiff was awarded past-due benefits. Dkt. No. 22-3, Ex. D. Plaintiff received a total retroactive award of $108,866.40. Id. Plaintiff himself received $81,649.80. Id. at p. 2. The remaining $27,216.60 was withheld for attorneys' fees. Id. at p. 3.

On July 24, 2008, Plaintiff and Counsel entered into a second fee agreement ("Second Fee Agreement"). Dkt. No. 22-4, Ex. H. The agreement states that if Plaintiff's claim is favorably decided by the SSA, Plaintiff would pay Counsel a fee equal to 25% of the past-due benefits resulting from Plaintiff's claim or $18,000, whichever is the lesser amount. Id. This agreement states that it "supercedes and replaces any previous fee agreement that was not approved by ODAR*fn2 or the SSA." Id.

On July 31, 2008, Counsel filed a fee petition with the ALJ in which he requested a fee of $18,000 "for [the] work [he performed] at the administrative level." Dkt. No. 22-3, Ex. G at p. 1. On March 27, 2009, Counsel was awarded $6,206.89 for the services he provided at the administrative level. Dkt. No. 22-4, Ex. I at p. 1. Counsel was awarded no fee for services that he performed "before a state or federal court, any time claimed for services relating to charging and collecting a legal fee and any vague miscellaneous services." Id. at p. 2.

Counsel then filed the present motion under 42 U.S.C. § 406(b), seeking the remaining $11,793.11 that was denied by the agency.*fn3 Dkt. No. 22-6, at p. 3. As noted, ...


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