Kenny v. Berryhill

Background

Gretchen Christine Kenny appealed the Social Security Administration’s denial of disability benefits based on physical and mental impairments. On July 20, 2018, the court granted Kenny’s motion for summary judgment, denied the Commissioner’s cross-motion for summary judgment, and remanded the case for further proceedings. The court later awarded Kenny’s counsel $4,800 under the Equal Access to Justice Act.

After a further hearing, an administrative law judge found Kenny disabled as of August 18, 2012. A March 5, 2020 notice stated that Kenny had been awarded past-due benefits. Social Security withheld $31,503.50 from that award for attorney’s fees. Under the contingency-fee agreement, counsel could seek up to 25 percent of the past-due benefits, but requested $21,000, described in the opinion as approximately 16 percent.

Legal standard

Section 406(b) allows a court to approve a reasonable fee for an attorney who represented a successful Social Security claimant in court, subject to a limit of 25 percent of the past-due benefits. The court must independently review the fee agreement to ensure that it produces a reasonable result. Relevant considerations include the quality of the representation, whether counsel delayed the case to increase fees, whether the fee is excessive compared with the benefits obtained, and the risk counsel accepted in taking the case. Section 406(b) fees must be offset by fees previously awarded under the Equal Access to Justice Act.

Analysis and ruling

The court found the $21,000 request reasonable. The fee agreement was within the 25-percent limit, and counsel sought less than that maximum. The court found no indication of inadequate representation or delay, concluded that counsel performed substantial work and achieved a favorable result, and determined that the fee was not excessive compared with the past-due benefits. The court also found that counsel had accepted a substantial risk of receiving no fee when the case was filed.

The court granted counsel’s motion for fees. It directed the Commissioner to certify $21,000 in fees under Section 406(b), payable to the Law Offices of Lawrence D. Rohlfing. It ordered counsel to refund the previously awarded $4,800 in Equal Access to Justice Act fees to Kenny.

Amount discrepancy in the opinion

The opinion states that Kenny was owed $127,690.60 in past-due benefits, while a footnote notes that Kenny reported $126,014 and that the benefits notice referred to a past-due benefits payment of $96,187.10. The court nevertheless used $127,690.60 in discussing the reasonableness of the requested fee.