IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

JAMES C. MAIBEN, *

 *

 *

*

Plaintiff, *

 *

vs. * CIVIL ACTION NO. 12-00080-B

 *

CAROLYN W. COLVIN, *

Acting Commissioner of *

Social Security, *

 *

Defendant. *

ORDER

This action is before the undersigned Magistrate Judge 

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

406(b) (Doc. 31) filed by Petitioner, Byron A. Lassiter, 

Esq., counsel for Plaintiff, James C. Maiben, 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. 31). Upon 

consideration of the motion, the Commissioner’s lack of 

opposition thereto (Doc. 33), and all other pertinent 

portions of the record, the undersigned concludes that the 

motion is due to be GRANTED and that Petitioner should 

receive a reasonable fee in the amount of $4,877.25 under 

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the Social Security Act.

I. Findings of Fact 

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

Plaintiff to represent him in connection with his claim 

for a period of disability, disability insurance benefits, 

and supplemental security income on July 7, 2010. (Doc. 31

¶ 1). The Attorney Fee Agreement entered into by 

Plaintiff and his counsel in January 2012 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 his

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

(Doc 31-3 ¶2, “FEE AGREEMENT- TITLE II and/or TITLE XVI”).

On September 30, 2013, this Court ordered that the 

Commissioner’s decision denying Plaintiff benefits be 

reversed and remanded to sufficiently explain why the 

consultative examiner’s opinion that Plaintiff would need 

to alternate positions every hour was rejected or not 

addressed. (Doc. 25, 26). Thereafter, on March 6, 2014, 

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 $3,733.20. (Doc. 22). 

On June 25, 2014, following remand, an Administrative

Law Judge rendered a fully favorable decision, finding

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that Plaintiff is disabled and that he was entitled to 

benefits commencing August 10, 2008, the alleged onset 

date. (Doc. 31 ¶ 5). 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. 31-2). According to Petitioner, he has already 

received approximately $5,390.75 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 $4,877.25, which represents 

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

Plaintiff.1 (Doc. 31 at 3; Doc. 31-2).

In the present petition, Petitioner seeks the 

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

$4,877.25, to be awarded as additional attorney’s fee 

under § 406(b). (Doc. 31 at 4). Petitioner asserts that

this request is consistent with the contingency agreement 

that Plaintiff executed upon retaining Petitioner and 

that, once he reimburses Plaintiff the amount of

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

past-due benefits is $10,268.00. (Doc. 31-2). Thus, the 

total amount of Plaintiff’s past-due benefits is 

$41,072.00.

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attorney’s fees previously awarded by the Court under the 

EAJA ($3,733.20), 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 he 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. 33 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 

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 

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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)

(“Congress has provided one boundary line: Agreements are 

unenforceable to the extent that they provide for fees 

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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

adopting this approach, the Supreme Court rejected the

Eleventh Circuit’s adoption of the lodestar calculation of 

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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 

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

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

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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. 31-2), the total amount of 

Plaintiff’s past-due benefits is $41,072.00, and 25% of 

that amount is $10,268.00. (Doc. 31 at 2-3; Doc. 31-2). 

The contingency agreements, which Plaintiff entered into

on January 27, 2012 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. 

31-3 ¶ 2). It is apparent to the Court that the amount 

requested by Petitioner herein ($4,877.25), when combined

with the $5,390.75 for administrative attorney fees 

already received by Petitioner from the Administration 

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(Doc. 31 at 3; Doc. 31-2), 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, the undersigned authorizes 

Petitioner Byron A. Lassiter, Esq., to receive, as an 

attorney’s fee pursuant to § 406(b) for services rendered at 

the federal court level, the sum of $4,877.25. 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 $3,733.20, 

which was previously awarded pursuant to the Equal Access to 

Justice Act (“EAJA”). 

ORDERED this the 6th day of January, 2016.

 /s/ SONJA F. BIVINS 

 UNITED STATES MAGISTRATE JUDGE

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