IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MARY A. LASKEY, *

 *

 *

*

Plaintiff, *

 *

vs. * CIVIL ACTION NO. 14-00097-CG-B

 *

CAROLYN V. COLVIN, *

Acting Commissioner of *

Social Security, *

 *

Defendant. *

REPORT AND RECOMMENDATION

This action is before the undersigned Magistrate Judge 

on a motion for attorney’s fees pursuant to 42 U.S.C. § 

406(b) (Doc. 23) filed by Petitioner, Byron A. Lassiter, 

Esq., counsel for Plaintiff, Mary A. Laskey, in connection 

with his representation of Plaintiff on Plaintiff’s claims 

before this Court for a period of disability, disability 

insurance benefits, and supplemental security income, under 

Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 

401 et seq., and 1381 et seq. (Doc. 23). This action was 

referred to the undersigned Magistrate Judge for report and 

recommendation pursuant to 28 U.S.C. § 636(b)(1)(B) and 

Local Rule 72.2(c)(3). Upon consideration of the motion, the 

Commissioner’s lack of opposition thereto (Doc. 25), and all 

other pertinent portions of the record, it is the 

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recommendation of the undersigned that the motion is due to 

be GRANTED and that Petitioner should receive a reasonable 

fee in the amount of $5,282.00 under the Social Security 

Act.

I. Findings of Fact 

Petitioner, Byron A. Lassiter, Esq., was hired by 

Plaintiff to represent her in connection with her claim 

for a period of disability, disability insurance benefits, 

and supplemental security income on March 22, 2011. (Doc. 

23 ¶ 1). The Attorney Fee Agreement entered into by 

Plaintiff and her counsel in February 2014 provides, 

in pertinent part, that if Plaintiff receives a favorable

decision from the Social Security Administration after 

the decision of a federal court, Plaintiff will pay her

attorney a fee equal to 25% of all past-due benefits. 

(Doc 23-3 ¶2, “FEE AGREEMENT- TITLE II and/or TITLE XVI”).

On September 5, 2014, this Court ordered that the 

Commissioner’s decision denying Plaintiff benefits be 

reversed and remanded for further administrative 

proceedings pursuant to sentence four of 42 U.S.C. § 

405(g). (Doc. 16). Thereafter, on January 15, 2015, the 

Court granted Plaintiff’s motion for attorney’s fees under 

the Equal Access to Justice Act (“EAJA”), 28 U.S.C. §

2412(d) in the sum of $3,429.18. (Doc. 22). 

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On June 15, 2015, following remand, an Administrative

Law Judge rendered a fully favorable decision, finding

that Plaintiff is disabled and that she was entitled to 

benefits commencing December 31, 2008, the alleged onset 

date. (Doc. 23 ¶ 7). Pursuant to Section 206 of the 

Social Security Act, codified at 42 U.S.C. § 406, the 

Administration withheld 25% of Plaintiff’s past-due 

benefits in order to pay for approved attorney’s fees. 

(Doc. 23-2). According to Petitioner, he has already 

received approximately $6,000 for representation of 

Plaintiff before the Administration, and, based on the 

information provided to Plaintiff by the Social Security 

Administration in a letter dated December 6, 2015, the 

Administration is withholding $5,282.00, which represents 

the balance of the 25% of past-due benefits owed to the 

Plaintiff.1 (Doc. 23 at 4; Doc. 23-2).

In the present petition, Petitioner seeks the 

remainder of the 25% of Plaintiff’s past-due benefits, 

$5,282.00, to be awarded as additional attorney’s fee 

under § 406(b). (Doc. 23 at 6). Petitioner asserts that

this request is consistent with the contingency agreement 

 1 Based on these figures, twenty-five percent of Plaintiff’s 

past-due benefits is $11,282.00. (Doc. 29-3). Thus, the 

total amount of Plaintiff’s past-due benefits is 

$45,128.00.

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that Plaintiff executed upon retaining Petitioner and 

that, once he reimburses Plaintiff the amount of

attorney’s fees previously awarded by the Court under the 

EAJA ($3,429.18), the attorney’s fees received will not 

exceed the allowable 25% of past-due benefits awarded to 

Plaintiff.

In response to Petitioner’s request, the Commissioner

states that she does not object to the requested fee but 

agrees that an attorney who has received attorney’s fees 

under both § 406 and EAJA must refund the lesser amount to 

his client. (Doc. 25 at 2).

II. Conclusions of Law

There are three statutory provisions under which 

attorneys representing claimants in Social Security 

Disability cases may be compensated: 42 U.S.C. §§ 406(a) 

and 406(b) and 28 U.S.C. § 2412(d). Section 406(a) 

provides the exclusive avenue for attorneys seeking fees 

for work done before the Commissioner at the administrative 

level. The fees awarded under Section 406(a) are paid out 

of the claimant’s past-due benefits awarded and are capped

at twenty-five percent of past-due benefits awarded or a 

lesser fixed amount. 42 U.S.C. § 406(a)(2)(A) and (B).

For fees incurred representing claimants in federal 

court, claimants and their attorneys may seek fees under 

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two statutory provisions, 42 U.S.C. § 406(b) and 28 U.S.C. 

§ 2412(d). Under Section 406(b), upon entry of judgment in 

favor of a claimant, the Court may award a reasonable fee 

for work performed before the Court, which are paid out of 

the claimant’s past-due benefits awarded. 42 U.S.C. § 

406(b)(1)(A). Section 406(b) imposes a cap on the total 

amount of fees that may be awarded, providing that a Court 

may not award fees “in excess of 25 percent of the total of 

the past-due benefits to which the claimant is entitled.” 

42 U.S.C. § 406(b)(1)(A). 

Section 406(b) thus “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) (citation 

omitted; emphasis in original); see Meyer v. Sullivan, 958 

F.2d 1029, 1035 n.12 (11th Cir. 1992) (the total amount of 

attorney’s fees that may be awarded under the Social 

Security Act is limited to 25% of the past-due benefits 

awarded).

The Supreme Court has held that “§ 406(b) does not 

displace contingent-fee agreements within the statutory 

ceiling; instead, § 406(b) instructs courts to review for

reasonableness fees yielded by those agreements.” 

Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 (2002)

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(“Congress has provided one boundary line: Agreements are 

unenforceable to the extent that they provide for fees 

exceeding 25 percent of the past-due benefits. . . . 

Within the 25 percent boundary, as petitioners in this

case acknowledge, the attorney for the successful

claimant must show that the fee sought is reasonable for 

the services rendered.”).

Courts that approach fee determinations by 

looking first to the contingent-fee agreement, 

then testing it for reasonableness, have 

appropriately reduced the attorney’s recovery

based on the character of the representation and

the results the representative achieved. . . . 

If the attorney is responsible for delay, for 

example, a reduction is in order so that the 

attorney will not profit from the accumulation 

of benefits during the pendency of the case in

court. . . . If the benefits are large in

comparison to the amount of time counsel spent 

on the case, a downward adjustment is similarly

in order. . . . In this regard, the court may 

require the claimant’s attorney to submit, not 

as a basis for satellite litigation, but as an 

aid to the court’s assessment of the 

reasonableness of the fee yielded by the fee 

agreement, a record of the hours spent 

representing the claimant and a statement of the 

lawyer’s normal hourly billing charge for 

noncontingent-fee cases.

Id. at 808 (internal citations omitted).

In line with Gisbrecht, therefore, this Court need 

begin with the contingency fee agreement and should only

reduce the amount called for by the agreement upon a

determination that this amount is unreasonable. In

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adopting this approach, the Supreme Court rejected the

Eleventh Circuit’s adoption of the lodestar calculation of 

fees in Kay v. Apfel, 176 F.3d 1322, 1323 (11th Cir. 1999) 

in favor of the contingency fee approach of other

Circuits, including the Second Circuit, in Wells v.

Sullivan, 907 F.2d 367, 371 (2d Cir. 1990) (district

courts must begin with the contingency fee agreement and 

may only “reduce the amount called for by the 

contingency agreement [] when it finds the amount to be

unreasonable”); see also Gisbrecht, 535 U.S. at 799, 808-

09.

By contrast, the EAJA permits a claimant to seek an 

award of fees against the government for work that is done 

before the Court if the claimant prevailed and the position 

of the Commissioner is not substantially justified. 28 

U.S.C. § 2412(d)(1)(A). The EAJA contains a Savings 

Provision that provides that “where the claimant’s attorney 

receives fees for the same work under both [406(b) and the 

EAJA], the claimant’s attorney refunds to the claimant the 

amount of the smaller fee.” Jackson v. Commissioner of 

Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010) (quoting 28 

U.S.C. 2412 note). 

This Circuit has held that “the aggregate of the 

attorney’s fees awarded under § 406(a) and § 406(b) may 

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not exceed 25% of the claimant’s past due benefits.” 

Bookman v. Commissioner of Soc. Sec., 490 Fed. Appx. 314, 

316 (11th Cir. 2012). “As the total fee under Sections 

406(a) and (b) cannot exceed 25% of the past-due benefits 

and ‘double dipping’ under the EAJA is not allowed, the 

Court generally needs to know the amount awarded under § 

406(a) (if any), amounts paid under EAJA (if any), and the 

total amount of past due benefits calculated by the 

agency, in order to evaluate the § 406(b) motion.” Bibber 

v. Commissioner of Soc. Sec., 2014 U.S. Dist. LEXIS 

181660, *4 (M.D. Fla. Oct. 29, 2014), adopted by 2015 U.S. 

Dist. LEXIS 14048, 2015 WL 476190, *4-5 (M.D. Fla. Feb. 5, 

2015).

As previously stated, based on the information 

provided to Plaintiff by the Social Security 

Administration (Doc. 23-2), the total amount of 

Plaintiff’s past-due benefits is $45,128, and 25% of that 

amount is $11,282.00. (Doc. 23 at 4; Doc. 23-2). The

contingency agreements, which Plaintiff entered into on

February 12, 2014 contemplates attorney’s fees of as much 

as 25% of the claimant’s past-due benefits following a 

favorable decision after a federal court remand. (Doc. 

23-3 ¶ 2). It is apparent to the Court that the amount 

requested by Petitioner herein ($5,282.00), when combined

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with the $6,000 for administrative attorney fees already 

received by Petitioner from the Administration (Doc. 29 at 

4; Doc. 23-2), does not exceed 25% of the past-due

benefits that Plaintiff has been awarded in this case. 

Moreover, there is no evidence that Petitioner delayed

this case in any manner, nor can the Court find that the

requested amount is so large as to be a windfall to 

Petitioner. Given the length of Petitioner’s relationship 

with the claimant and the favorable results achieved by 

Petitioner for the claimant, the Court considers the 

requested amount reasonable.

III. Conclusion

Based on the foregoing, it is the recommendation of the 

undersigned that Petitioner’s motion be GRANTED and that

Byron A. Lassiter, Esq., receive, as an attorney’s fee 

pursuant to § 406(b) for services rendered at the federal 

court level, the sum of $5,282.00. This total is equal to 

twenty-five (25%) percent of the total past-due benefits 

awarded to Plaintiff, minus the administrative amount 

previously paid. Additionally, Petitioner is directed to 

disburse to Plaintiff the sum of $3,429.18, which was 

previously awarded pursuant to the Equal Access to Justice 

Act (“EAJA”). 

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NOTICE OF RIGHT TO FILE OBJECTIONS 

A copy of this report and recommendation shall be 

served on all parties in the manner provided by law. Any 

party who objects to this recommendation or anything in it 

must, within fourteen (14) days of the date of service of 

this document, file specific written objections with the 

Clerk of this Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.

72(b); S.D. ALA. GenLR 72(c). The parties should note that 

under Eleventh Circuit Rule 3-1, “[a] party failing to 

object to a magistrate judge’s findings or recommendations 

contained in a report and recommendation in accordance with 

provisions of 28 U.S.C. § 636(b)(1) waives the right to 

challenge on appeal the district court’s order based on 

unobjected-to factual and legal conclusions if the party was 

informed of the time period for objecting and the 

consequences on appeal for failing to object. In the absence 

of a proper objection, however, the court may review on 

appeal for plain error if necessary in the interests of 

justice” 11th Cir. R. 3-1. In order to be specific, an 

objection must identify the specific finding or 

recommendation to which objection is made, state the basis 

for the objection, and specify the place in the Magistrate 

Judge’s report and recommendation where the disputed 

determination is found. An objection that merely 

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incorporates by reference or refers to the briefing before 

the Magistrate Judge is not specific. 

ORDERED this the 5th day of January, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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