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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

ANTHONY L. HANSON, :

 :

Plaintiff, :

 :

vs. : CIVIL ACTION 13-0443-M

 :

MICHAEL J. ASTRUE, :

Commission of Social Security, :

 :

Defendant. :

MEMORANDUM OPINION AND ORDER

This action is before the Court on Plaintiff’s Attorney’s 

Petition for Attorney Fees Pursuant to 42 U.S.C. § 406(b) (Doc. 

30) and Defendant’s Response (Doc. 31). After consideration of 

all pertinent materials in the file, it is ORDERED, without 

objection by the Government, that Plaintiff’s Attorney’s 

Petition be GRANTED, that Plaintiff’s attorney, Byron A. 

Lassiter, be AWARDED a fee of $4,077.25 for his services before 

this Court, and that Lassiter pay to Plaintiff the sum of 

$3,585.41, the sum representing the fee previously awarded to 

Lassiter pursuant to the Equal Access to Justice Act 

(hereinafter EAJA).

Plaintiff, Anthony L. Hanson, hired Byron A. Lassiter on 

September 29, 2010 to pursue his claims for disability insurance 

benefits (see Doc. 30, ¶ 1). On September 5, 2013, Plaintiff 

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executed a written contingent fee agreement through which 

Lassiter would receive twenty-five percent of past-due benefits 

paid to Plaintiff (Doc. 30, Exhibit E).

For the past six years, Counsel has prosecuted Plaintiff’s 

claims before the Social Security Administration and this Court, 

commencing a civil action here on September 9, 2013 (Doc. 1). 

On June 23, 2014, the undersigned entered a Memorandum Opinion 

and Order and Judgment in which the decision of the 

Administrative Law Judge (hereinafter ALJ) was reversed and this 

action remanded for further administrative proceedings (Docs. 

28-29). On remand, the ALJ rendered a fully favorable decision 

on November 10, 2015, finding Plaintiff entitled to disability 

benefits (see Doc. 30, ¶ 5).

On February 3, 2016, Plaintiff’s Counsel received a Notice

of Award from the SSA on Hanson’s behalf, stating that the 

amount of $10,077.25, representing twenty-five percent of 

Plaintiff’s past-due benefits, had been withheld for payment of 

authorized attorney fees (Doc. 30, Exhibit B). Lassiter has 

received $6,000.00 in administrative attorney fees and now 

requests a fee in the amount of $4,077.25 for his services 

before this Court; together, these sums equal twenty-five 

percent of Plaintiff’s past-due benefits (Doc. 30, Exhibit D).

On September 21, 2016, Lassiter filed the pending Motion,

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requesting approval of a fee in the amount of $4,077.25 (Doc. 

30). Since filing this action on September 9, 2013, Counsel has 

spent a total of 19.2 hours representing Hanson before this 

Court without compensation (Doc. 30, Exhibit 1). Defendant has 

provided no objection to the requested fee (Doc. 31).

The Social Security Act provides that when a court renders 

a favorable judgment to a Social Security claimant “who was 

represented before the court by an attorney, the court may 

determine and allow as part of its judgment a reasonable fee for 

such representation, not in excess of 25 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). The fee 

is payable “out of, and not in addition to, the amount of [the] 

past-due benefits.” Id. Thus, the Act “provides for contingent 

fees to be charged to the client, with the amount to be set by 

the district court subject to a statutory maximum.” Watford v. 

Heckler, 765 F.2d 1562, 1566 (11th Cir. 1985) (citations omitted) 

(emphasis in original).

The Supreme Court, in Gisbrecht v. Barnhart, 535 U.S. 789, 

805-07 (2002), concluded that Congress designed § 406(b) to 

monitor fee agreements between Social Security benefits 

claimants and their counsel. Specifically, the Court held that 

“§ 406(b) does not displace contingent-fee agreements as the 

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primary means by which fees are set for successfully 

representing Social Security benefits claimants in court. 

Rather, § 406(b) calls for court review of such arrangements as 

an independent check, to assure that they yield reasonable 

results in particular cases.” Id. at 807. The only boundaries

made by Congress are that the fee cannot exceed twenty-five 

percent of the total disbursement and that the “fee sought [be]

reasonable for the services rendered.” Id. 

The fee provided for in § 406(b) is in addition to that 

provided in § 406(a) which states that the Commissioner may 

award attorney’s fees to a successful claimant’s attorney for 

work performed before the SSA. Fees awarded pursuant to § 

406(a) and § 406(b) are awarded in addition to any attorney’s 

fee a claimant’s attorney may receive pursuant to EAJA, 28 

U.S.C. § 2412, if the Commissioner’s position before the Court 

was not “substantially justified.” Gisbrecht, 535 U.S. at 796. 

In order to avoid a double recovery, a claimant’s attorney who 

is awarded attorney’s fees under both § 406(b) and EAJA must 

refund the lesser amount to his or her client. Id.

The Gisbrecht Court did not set out specific facts that the 

district courts are to consider when reviewing fees yielded by a 

contingent-fee agreement, but it did point to the following 

factors which may be considered in reviewing for reasonableness: 

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(1) the character of representation; (2) the result achieved by 

the attorney; (3) any delay caused by the attorney; (4) the 

amount of benefits relative to the time spent on the action such 

that the attorney receives a windfall; (5) fraud or overreaching 

in making the agreement; and (6) a requirement that the 

requested fee does not exceed twenty-five percent of past-due 

benefits. See Gisbrecht, 535 U.S. at 808. A Second Circuit 

decision further noted that “[s]hould the district court find 

that the agreement provides an unreasonable fee under the 

circumstances, the court may reduce the fee provided it states 

the reasons for and the amounts of the deductions.” Wells v. 

Sullivan, 907 F.2d 367, 372 (2nd Cir. 1990). 

After reviewing the fee petition and attached documents, 

Defendant’s response, and the guidance provided by Gisbrecht and 

the opinions cited above, the Court finds Lassiter has 

diligently represented Hanson since 2013 in this Court and has 

successfully obtained past-due benefits for Plaintiff. There is 

no evidence that Lassiter contributed to any undue delay in this 

action, either before the Commissioner or before this Court, nor 

evidence of any fraud or overreaching in procuring or making the 

contingent-fee agreement. Plaintiff has signed a fee agreement

in which he agrees to the fee being requested by his Attorney. 

The total fee requested does not exceed twenty-five percent of 

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past-due benefits and comports with Plaintiff’s contingent-fee 

agreement with his attorney. The requested fee cannot be 

considered a windfall or unreasonable. The Court finds that the 

requested fee of $4,077.25 is reasonable for the services 

rendered before this Court.

By Memorandum Opinion and Order and Judgment entered on 

October 28, 2014 (Docs. 28-29), the Commissioner was ordered to 

pay Plaintiff’s Counsel $3,585.41 in fees pursuant to EAJA. In 

the instant Motion, Lassiter acknowledges that the EAJA fee of 

$3,585.41, currently held in trust for Hanson’s benefit, needs 

to be paid to Plaintiff (Doc. 30, ¶ 14). An attorney’s fee 

awarded under § 406(b) is subject to a dollar-for-dollar offset 

by the attorney’s previous fee awarded under EAJA.

Therefore, it is ORDERED, without objection from Defendant, 

that Plaintiff’s Attorney’s Petition for Attorney’s Fees be 

GRANTED and that Plaintiff’s Attorney be AWARDED a fee in the 

amount of $4,077.25 for his services before this Court. It is 

FURTHER ORDERED that Lassiter pay Plaintiff $3,585.41, the sum 

representing the EAJA fee previously awarded.

DONE this 14th day of October, 2016.

s/BERT W. MILLING, JR. 

UNITED STATES MAGISTRATE JUDGE

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