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Morgan v. Commissioner of Social Security

United States District Court, E.D. Michigan, Southern Division

November 28, 2017

PETER MORGAN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          PAUL D. BORMAN DISTRICT JUDGE.

          REPORT AND RECOMMENDATION

          R. STEVEN WHALEN UNITED STATES MAGISTRATE JUDGE.

         This is a Social Security Disability case. The case was remanded to the administrative level for further proceedings, where it was consolidated with Plaintiff Peter Morgan's companion case, E.D. Mich. Docket No. 14-11006, that case also having been remanded. Plaintiff now seeks attorney fees under 42 U.S.C. § 406(b). Specifically, the following motions are now before the Court, having been referred for Reports and Recommendations under 28 U.S.C. § 636(b)(1)(B):

-Petition for Approval of Section 406(b) Attorney Fees [Doc. #34].
-Petition to Modify Petition for Approval of § 406(b) Fees [Doc. #40].
-Revised Petition for Approval of § 406(b) Attorney Fees [Doc. #43].

         Defendant Commissioner does not oppose these motions. For the reasons discussed below, I recommend that the Court GRANT original Petition [Doc. #34] subject to modification, GRANT the Motion to Modify Petition [Doc. #40], and GRANT the Revised Petition [Doc. #43], awarding a § 406(b) attorney fee in the amount of $6, 152.58, with 50% ($3, 076.29) being refunded to Plaintiff Peter Morgan pursuant to the Equal Access to Justice Act (“EAJA”).

         DISCUSSION

         Following a remand in this case under Sentence Four of 42 U.S.C. § 405(g), Plaintiff moved for attorney fees under the EAJA. The Court denied that motion based on DeLong v. Commissioner of Soc. Sec., 748 F.3d 723 (6th Cir. 2014), finding that the error necessitating a remand was an “articulation error.” However, in a companion case, E.D. Mich. Docket No. 14-11006, which was also remanded, the Court did award EAJA fees in the amount of $8, 002.58. Both cases were joined on remand, and the Plaintiff was ultimately awarded $64, 629.00 is past-due benefits.

         Plaintiff entered into a 25% contingent fee agreement. In Horenstein v. Sec'y of HHS, 35 F.3d 261 (6th Cir. 1994), the Court held that each decisional entity-the District Court and the administrative tribunal-may award § 406(b) fees only for the work specifically done before it. Plaintiff requested $16, 152.58 in § 406 attorney fees at the administrative level, and was awarded $10, 000.00 for work performed at that level, under § 406(a). Plaintiff now seeks the balance of $6, 152.58 to complete payment of the 25% contingent fee, under § 406(b), for work done in this Court.[1]

         Again, however, although Plaintiff did not receive EAJA fees in this case, he was awarded $8, 002.58 in EAJA fees in the companion case. The Commissioner takes the position that an award of § 406(b) fees in this case would also apply to Case No. 14-11006, which would require Plaintiff's counsel “to refund the lesser of the portion of the § 406(b) fees attributable to that case under the Savings Clause of the Equal Access to Justice Act.” Defendant's Unopposed Motion to Stay Adjudication of Plaintiff's Petition for Attorney Fees [Doc. #38], at 2, Pg. ID 733. Plaintiff agrees to that approach; therefore, apportioning 50% of the § 406(b) fees to this case (where no EAJA fees were awarded) and 50% to the Case No. 14-11006 (where EAJA fees were awarded), Plaintiff Peter Morgan is entitled to a refund of the § 406(b) fees attributable to the companion case, that amount being 50% of $6, 152.58, or $3, 076.29.[2] The Commissioner does not oppose this resolution.

         CONCLUSION

         I recommend that the Court GRANT original Petition [Doc. #34] subject to modification, GRANT the Motion to Modify Petition [Doc. #40], and GRANT the Revised Petition [Doc. #43], awarding a § 406(b) attorney fee in the amount of $6, 152.58, with 50% ($3, 076.29) being refunded to Plaintiff Peter Morgan pursuant to the Equal Access to Justice Act.

         Any objections to this Report and Recommendation must be filed within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. §636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn,474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of HHS,932 F.2d 505 (6th Cir. 1991); United States v. Walters,638 F.2d 947 (6th Cir. 1981). Filing of objections which raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Secretary of HHS,931 F.2d 390, 401 (6th Cir. 1991); Smith ...


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