United States District Court, W.D. Virginia, Big Stone Gap Division
Meade Sargent United States Magistrate Judge.
social security action, I am asked to rule on a motion for an
attorney's fee, (Docket Item No. 25) (“the
Motion”). Based on the reasoning set out below, the
Motion will be granted.
Allen Castle, (“Castle”), filed this action
challenging the final decision of the Commissioner of Social
Security, (“Commissioner”), denying his claim for
a period of disability and disability insurance benefits,
(“DIB”), and supplemental security income,
(“SSI”), under the Social Security Act, as
amended, (“Act”), 42 U.S.C.A. §§ 423
and 1381 et seq. (West 2011 & West 2012).
Jurisdiction of this court exists pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3). The Commissioner answered
the suit, filing the administrative record. Thereafter, the
court, by order and judgment entered January 6, 2015, vacated
the Commissioner's decision denying benefits and remanded
the case to the Commissioner for further consideration.
(Docket Item Nos. 23, 24.) Counsel for Castle filed a
petition seeking approval of a fee of $6, 000.00 for
representing Castle in this court, pursuant to 42 U.S.C.A.
§ 406(b). (Docket Item No. 25.) Pursuant to an order
from the court, the Commissioner responded to the Motion on
August 7, 2017. (Docket Item No. 27.) In this response, the
Commissioner stated that she did not object to the award of
an attorney's fee in the amount of $6, 000.00.
proceedings under title II of the Act, the court is
authorized to determine and allow a “reasonable
[attorney's] fee . . . not in excess of 25 percent of the
total of the past-due benefits to which the claimant is
entitled . . . .” 42 U.S.C.A. § 406(b)(1)(A) (West
2011 & Supp. 2016). The Fourth Circuit, construing the
legislative history, has held that the 25 percent limit
includes any separate fee authorized by the Commissioner for
services rendered in the administrative proceedings. See
Morris v. Soc. Sec. Admin., 689 F.2d 495, 497 (4th Cir.
1982) (per curiam). Here, the Social Security Administration
has not awarded a fee for services performed before it.
Supreme Court has held that a district court, in determining
a fee under § 406(b)(1)(A), must consider the fee
arrangement between the client and the attorney, including a
contingency fee arrangement, as the first step in testing the
requested fee for reasonableness. See Gisbrecht v.
Barnhart, 535 U.S. 789, 808 (2002). Castle's counsel
has not provided the court with a fee agreement in this case,
but a review of the record shows that such an agreement was
entered into between counsel and Castle on February 23, 2011.
See Civil Action No. 2:13cv00047 (Docket Item No.
7-1 at 88.) More specifically, in a document entitled
“Fee Approval Prior To The Issuance Of A Decision,
” Castle agreed, in the event of a favorable Social
Security Administration decision on his claims, to pay
counsel a fee of the lesser of 25 percent of all past-due
benefits awarded to him and his family or the dollar amount
established pursuant to 42 U.S.C. § 406(a)(2)(A), which,
at that time, was $6, 000.00. Among other things, counsel has
provided the court with a copy of the Social Security
Administration's March 22, 2017, Notice of Change in
Benefits Letter, which states that Castle was entitled to
$76, 635.00 in past-due benefits and that it had withheld
$19, 158.75, or 25 percent, from Castle's past-due
benefits for payment of an attorney's fee. (Docket Item
No. 25-1 at 25-29.) This Notice also indicates that, pursuant
to a fee agreement, counsel could not charge Castle more than
$6, 000.00 for his representation of him.
in determining a reasonable fee, courts should consider
whether counsel's actions contributed to a delay allowing
an accumulation of past-due benefits or whether the benefits
awarded are large in comparison to the amount of time
expended by the attorney. See Gisbrecht, 535 U.S. at
808. Furthermore, it appears proper for the court to consider
the so-called “lodestar” method of fee
determination, whereby a reasonable fee is determined by
multiplying the number of hours reasonably expended on the
litigation by a reasonable hourly rate, to assess the
reasonableness of the agreed fee. See Gisbrecht, 535
U.S. at 801-02 (quoting Hensley v. Eckerhart, 461
U.S. 424, 433 (1983)) (“[t]he most useful starting
point for [court determination of] the amount of a reasonable
fee … is the number of hours reasonably expended on
the litigation multiplied by a reasonable hourly
rate.”); see also Blanchard v. Bergeron, 489
U.S. 87, 94 (1989). Also, the fee petitioner bears the burden
of justifying a requested fee. See Blum v. Stenson,
465 U.S. 886, 895 n.11 (1984).
present case, Castle's counsel has supplied evidence that
shows that a total of 22.5 hours was spent in representing
Castle in this court. Counsel did not designate which of
those hours were for services performed by an attorney and
which were performed by paralegals, nor did he suggest an
appropriate hourly fee for either the attorney's services
or paralegal services rendered in this case.
court notes that “it is not proper to award a full
attorney rate for activities that should more effectively be
performed by nonlawyers.” Chapman v. Astrue,
2009 WL 3764009, at *1 (W.D. Va. Nov. 9, 2009) (citing
Spell v. McDaniel, 824 F.2d 1380, 1401-02
(4th Cir. 1987)). Additionally, “purely
clerical tasks are ordinarily a part of a law office's
overhead and should not be compensated for at all.”
Chapman, 2009 WL 3764009, at *1 (citing Keith v.
Volpe, 644 F.Supp. 1312, 1316 (C.D. Cal. 1986)). In
Chapman, this court found that it is proper to award
a reduced hourly rate for nonattorney time spent “on
the theory that their work contributed to their supervising
attorney's work product, was traditionally done and
billed by attorneys, and could be done effectively by
nonattorneys under supervision for a lower rate, thereby
lowering overall litigation costs.” 2009 WL 3764009, at
*1 (quoting Cook v. Brown, 68 F.3d 447, 453 (Fed.
these principles in mind, an examination of the itemized
record submitted by counsel in this case makes clear that
some of the time should be reduced or eliminated.
Additionally, there are other billed activities that would
more appropriately have been included at a nonattorney rate
or are excessive. Plaintiff's counsel claims 3.00 hours
of time for preparation of the Complaint, Summons and Civil
Cover Sheet and 1.00 hour of time for electronically filing
the same and the IFP application with this court. I will
allow .75 hour of nonattorney time for these activities
combined. Counsel claims 1.00 hour of time for mailing the
Complaint and Summons to Regional Chief Counsel, the U.S.
Attorney and the Attorney General, .50 hour of time for
receipt of the return of service on these items and 1.00 hour
of time for submission of the certified mail receipts. I will
allow .75 hour of nonattorney time for these activities
combined. Counsel also claims .25 hour of time for receipt
and review of the Briefing Notice. I will allow .25 hour of
nonattorney time for this. Counsel also claims .50 hour of
time for submission of the Consent to Magistrate Judge
Jurisdiction form and .25 hour of time for receipt and review
of the Order referring the case to the Magistrate Judge. I
will allow .25 hour of attorney time and .25 hour of
nonattorney time for these activities combined. Counsel
claims 1.00 hour of time for receipt and review of the
administrative transcript. I find this request reasonable and
will allow 1.00 hour of attorney time for this. Counsel
claims 8.00 hours of time for preparation of the Motion for
Summary Judgment and Brief in Support. I will allow 5.00
hours of attorney time and 3.00 hours of nonattorney time for
this. Counsel claims 1.00 hour of time for electronically
filing the same. I will allow .25 hour of nonattorney time
for this. Counsel also claims 1.00 hour of time for receipt
and review of the Commissioner's Motion for Summary
Judgment and Brief in Support. I find this request
reasonable, and I will allow 1.00 hour of attorney time for
this. Counsel claims 1.00 hour of time for receipt and review
of the Order and Judgment remanding the case to the
Commissioner. I will allow .25 hour of attorney time for
this. Lastly, counsel claims 3.00 hours of time for
preparation of the Fee Petition currently before the court. I
will allow 1.00 hour of attorney time and .50 hour of
nonattorney time for this.
on the revisions stated above, the fee computation is
divisible into two categories of costs: attorney time and
nonattorney time. There is a total of 8.5 hours of attorney
time and a total of 5.75 hours of nonattorney time. This
court has held that $75 is a reasonable hourly rate for
nonattorney time. See Chapman, 2009 WL 3764009, at
*2 (citing Alexander S. v. Boyd, 113 F.3d 1373, 1377
n.1 (4th Cir. 1997) (paralegal services
compensated at $65 per hour where lead counsel compensated at
$225 per hour and associate counsel at $100 per hour). At a
$75 rate, $431.25 of the requested fee would be payable for
nonattorney time. That would leave $5, 568.75 for
counsel's time, which, if paid for the remaining 8.5
hours of work, would result in a payment of approximately
$655.15 per hour. While I cannot, in good conscience, find
that such an hourly fee in a social security disability case
is per se reasonable, I am, as stated above, obliged to
consider Castle's fee agreement, which allowed for
payment of the lesser amount of 25 percent of past-due
benefits or $6, 000.00. Here, 25 percent of Castle's
past-due benefits amounts to $19, 158.75. Therefore, under
the terms of the fee agreement, counsel cannot charge Castle
more than $6, 000.00 for an attorney's fee. The amount
requested equals the $6, 000.00 cap on attorney's fees in
this case. There is no evidence that counsel's actions
contributed to a delay allowing an accumulation of past-due
benefits. Additionally, the Government does not object to the
award of the requested fee. Lastly, as alluded to above, the
requested fee falls beneath the statutory 25 percent cap.
Considering these things, and in light of the fact that
counsel undertook this case under a contingency fee
arrangement, assuming the risk of no payment if benefits were
not awarded, I find that a total fee of $6, 000.00 is
reasonable for the attorney's services before this court.
foregoing reasons, the Motion will be granted and a judgment
will be entered awarding the plaintiff's attorney a fee
of $6, 000.00.
 Nancy A. Berryhill became the Acting
Commissioner of Social Security on January 23, 2017.
Berryhill is substituted for Carolyn W. Colvin, the previous