Kennedy v. Social Security Administration Commissioner

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IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
FORT SMITH DIVISION
LAURA KENNEDY 	PLAINTIFF
vs. 	Civil No. 2:21-cv-02170
COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION 	DEFENDANT
REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
Pending now before the Court is Plaintiff’s Motion for Attorney’s Fees under 42 U.S.C. §
406(b). 	ECF No. 33. 	Defendant responded to this Motion and takes no position on the requested
award of attorney’s fees. ECF No. 34.
Pursuant to the provisions of 28 U.S.C. § 636(b)(1) and (3) (2009), the Honorable Timothy L.
Brooks referred this Motion to the Court for the purpose of making a report and recommendation. In
accordance with that referral, this Court enters the following report and recommendation.
1. 	Background:
On October 12, 2021, Plaintiff appealed to the Court from the Commissioner of the Social
Security Administration’s (“SSA”) denial of her request for disability benefits. 	ECF No. 1. 	On
January 19, 2023, Plaintiff’s case was reversed and remanded to the SSA for further administrative
review. ECF Nos. 28.
After that remand, Plaintiff was found disabled and awarded disability benefits. ECF No. 33.
On May 21, 2024, the Agency notified Plaintiff her total backpay award and award to auxiliary
beneficiary was $209,799.00. Id. Plaintiff had previously entered into a contingency-fee agreement
with Plaintiff’s attorney, in which she agreed to pay 25% of any past-due benefits awarded. 	Id.
Such contingency-fee agreements are contemplated by the Social Security Act. 	See 42 U.S.C.
§ 406(b)(1)(A).
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With this Motion, Plaintiff counsel seeks an award of $44,145.20 of attorney fees. Id. This
Court had previously awarded fees pursuant to the Equal Access to Justice Act in the amount of
$8,743.20. ECF No. 32. Upon an award of attorney’s fees pursuant to this motion, Plaintiff counsel
agrees refund those fees received pursuant to the Equal Access to Justice Act to Plaintiff.
2. 	Applicable Law:
According to the Supreme Court in Gisbrecht v. Barnhart, 535 U.S. 789, 806 (2002), district
courts are to give effect to plaintiffs' and their attorneys' contractual agreements and refrain from “
‘depriving plaintiffs of the option of promising to pay more than the statutory fee if that is necessary
to secure counsel of their choice....’ ” Id. (quoting Venegas v. Mitchell, 495 U.S. 82, 89-90 (1990)).
The Gisbrecht Court observed that “[i]t is ... unlikely that Congress ... intended to install a lodestar
method” for courts to use in reviewing the reasonableness of contingency fee awards. Id. at 806.
Instead, 	Congress 	meant 	for 	reviewing 	courts 	to 	evaluate Section 406(b) awards 	for
“reasonableness,” and in doing so, act “as an independent check, to assure that [contingent fee
arrangements] yield reasonable results in particular cases.” Id. at 807. 	There are three indicia of
reasonableness that courts should consider: (1) the character of the representation and results
achieved, (2) whether the attorney was responsible for any delay, (3) and whether the attorney-fee
benefit would be large in comparison to the amount of time counsel spent on the case. Id. at 808.
3. 	Discussion:
Pursuant to the contingency fee agreement, Plaintiff’s attorney is entitled to twenty-five
percent of past-due benefits. 	ECF No. 33-3. 	In this matter, Plaintiff’s attorney seeks an award of
amount totals $44,145.20, which is less than twenty-five percent of past-due benefits contemplated
in the contingency-fee agreement Plaintiff entered into with Plaintiff’s attorney. ECF No. 33.
The Court has examined Plaintiff's Motion, Brief in Support, contingency-fee agreement, and
exhibits attached to the Motion. The Court is now satisfied that an award of $44,145.20 in attorney's
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fees, made pursuant to 42 U.S.C. § 406(b), is reasonable due to the character of Plaintiff’s
representation and the positive results achieved for Plaintiff, the fact that Plaintiff’s attorney was not
responsible for any measurable delay in the proceedings, and the fact that the request for fees does
not represent a “windfall” to in comparison to the monetary award Plaintiff received and the amount
of time invested in the case.
4. 	Conclusion:
Based upon the foregoing, the Court recommends Plaintiff’s Motion for Attorney’s Fees (ECF
No. 33) be GRANTED, and Plaintiff’s attorney be awarded $44,145.20 in fees. Further, the Court
recommends Plaintiff’s counsel be ordered to refund to Plaintiff the amount of $8,743.20, which was
awarded under the EAJA in attorney fees on May 9, 2023. 	ECF No. 32.
The Parties have fourteen (14) days from receipt of this Report and Recommendation in
which to file written objections pursuant to 28 U.S.C. § 636(b)(1). 	The failure to file timely
objections may result in waiver of the right to appeal questions of fact. 	The Parties are
reminded that objections must be both timely and specific to trigger de novo review by the
district court. See Thompson v. Nix, 897 F.2d 356, 357 (8th Cir. 1990).
ENTERED this 17th day of April 2025.
/s/ Barry A. Bryant
HON. BARRY A. BRYANT
UNITED STATES MAGISTRATE JUDGE
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