Desai v. Commissioner of Social Security Administration ( 2021 )

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA PRAVINA DESAI, ) ) Plaintiff, ) ) -vs- ) Case No. CIV-19-154-F ) ANDREW SAUL, Commissioner of ) Social Security, ) ) Defendant. ) ORDER Before the court is the Motion for Attorney Fees Under 42 U.S.C. § 406(b), filed by plaintiff, Pravina Desai, and plaintiff’s counsel, Miles L. Mitzner, on June 21, 2021. Doc. no. 25. Defendant has responded to the motion. No reply has been filed by plaintiff and plaintiff’s counsel within the time specified by LCvR 7.1(i). Upon review of the parties’ submissions and relevant law, the court makes its determination. The court concludes the requested fee of $14,458.50 is reasonable in amount in this contingency matter, in relation to the benefits and services received for the fees. Plaintiff was awarded past-due benefits in the amount of $57,834.00. The amount of attorney’s fees requested is not more than 25% of the past-due benefits awarded. It is also consistent with the contingency fee agreement between plaintiff and plaintiff’s counsel which is to be given primacy under Gisbrecht v. Barnhart, 535 U.S. 789 (2002), and it is not subject to reduction under the Gisbrecht factors. The legal work performed by counsel was of professional quality. Without the legal work performed by counsel, there presumably would not have been a court order reversing defendant’s denial of plaintiff’s application for disability insurance benefits and no subsequent award of $57,834.00 in past-due benefits. In the court’s view, counsel is not the cause of the delay in reaching a favorable decision in this case. Further, the court concludes that the requested attorney’s fees do not result in a windfall for counsel considering the contingent nature of the claim. The court concludes that the request for attorney’s fees is timely. The attorney’s fees motion was filed within the time specified by the court in its June 16, 2021 order (doc. no. 24). The court concludes that defendant shall pay directly to plaintiff’s counsel, Miles L. Mitzner, the $6000.00 withheld from plaintiff’s past-due benefits for attorney’s fees. As the amount withheld by the defendant is insufficient to cover the total amount of attorney fees awarded by the court, plaintiff’s counsel may proceed by following the procedures outlined in Social Security Administration Program Operations Manual System (POMS) GN 03920.055 to recover the remaining fees not withheld by defendant. Because plaintiff’s counsel has previously sought and received a $4,500.00 fee award pursuant to the Equal Access to Justice Act (EAJA), counsel, upon receipt of the section 406(b) fees from defendant, must refund that award to plaintiff. Accordingly, the Motion for Attorney Fees Under 42 U.S.C. § 406(b), filed by plaintiff, Pravina Desai and plaintiff’s counsel, Miles L. Mitzner (doc. no. 25), is GRANTED. Plaintiff’s counsel is awarded attorney’s fees under section 406(b) in the sum of $14,458.50. Defendant shall pay directly to Mr. Mitzner the $6,000.00 withheld for attorney’s fees from plaintiff’s past-due benefits. Mr. Mitzner may follow the procedure set out in POMS GN 03920.055 to recover the attorney fees not withheld by defendant from plaintiff’s past-due benefits. Upon receipt of the section 406(b) fees from defendant, Mr. Mitzner shall refund to plaintiff the previously awarded EAJA fees of $4,500.00. IT IS SO ORDERED this 14" day of July, 2021. STEPHEN P. FRIOT . = UNITED STATES DISTRICT JUDGE 19-0154p007.docx