UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

James Levesque

v. Civil No. 18-cv-420-LM Opinion No.

Andrew Saul, Commissioner, Social Security Administration

O R D E R

Attorney D. Lance Tillinghast seeks $26,057 in attorney’s

fees for his successful representation of Social Security

claimant, James Levesque. See doc. no. 17. Tillinghast argues

that he is entitled to attorney’s fees under both 42 U.S.C §

406(b)(1) of the Social Security Act (“§ 406(b)”) and pursuant

to a fee agreement he executed with Levesque. See doc. no. 17.

The Commissioner of the Social Security Administration

(“Commissioner”) argues that the fee award may constitute a

windfall and urges the court to reduce the award. See doc. no.

19. The Commissioner further suggests that if the court awards

fees to Tillinghast, the court should ensure that Tillinghast

refunds Levesque the fees previously awarded under the Equal

Access to Justice Act (“EAJA”) 28 U.S.C § 2412 as required under

§ 406(b).

For the reasons that follow, the court finds that $11,120.00

is a reasonable attorney’s fee award here. The court further

directs Tillinghast to remit the EAJA award to Levesque. BACKGROUND

Levesque filed an application for disability insurance

benefits and supplemental social security income (“SSI”) on

November 29, 2010. After an initial denial, Levesque hired

Tillinghast on March 31, 2011. Tillinghast represented Levesque

at each step of what became a long, but ultimately successful,

SSI application.

After a hearing in March 2012, an Administrative Law Judge

(“ALJ”) found Levesque not disabled. The Appeals Council denied

his request for review on May 24, 2013. Levesque appealed to

this court. See Levesque v. U.S. Soc. Sec. Admin., Acting

Comm’r, 13-cv-298-JL (D.N.H. June 28, 2013).

After a hearing, this court granted Levesque’s appeal and

remanded to the ALJ. A different ALJ held a hearing on

Levesque’s claim and found partially in favor of Levesque on

July 10, 2015. Levesque appealed and the Appeals Council

remanded in part to the ALJ.1

1 The Appeals Council directed the ALJ, upon remand, to: (1) recontact Levesque’s treating sources and/or obtain evidence from a medical expert to clarify the nature, severity, and limiting effects of Levesque’s impairments; (2) give further consideration to the opinions of Drs. Lowne, Wiley, and Grobman and explain the reasons for the weight given to their opinions; (3) give further consideration to Levesque’s maximum RFC during the relevant period prior to March 14, 2013, and provide appropriate rationale with specific references to the evidence of record to support the assessed limitations; and (4) obtain supplemental evidence from a vocational expert if necessary. See doc. no. 13. 2 Before the ALJ held its next hearing, Tillinghast and

Levesque entered into a two-tiered contingency fee agreement

(the “Agreement”). This Agreement specifies that if Levesque

prevailed at the upcoming ALJ hearing, Tillinghast would receive

the lesser of either 25 percent of all past-due benefits awarded

or the dollar amount set pursuant to

(a)(2)(A),

which is currently $6,000. Further, the Agreement specifies

that if the ALJ denied Levesque’s motion in the upcoming

hearing, Tillinghast appealed, and Levesque prevailed, then

Tillinghast would ask the SSA to approve a fee of up to 25

percent of past-due benefits. Doc. no. 17, Ex. B. The

Agreement also states that if Levesque does not win benefits,

then Tillinghast does not receive a fee award. See doc. no. 17,

Ex. B.

The ALJ held a hearing on July 13, 2017, and issued an

unfavorable decision on August 8, 2017. The Appeals Council

denied Levesque’s subsequent request for review making the ALJ’s

decision the Commissioner’s final decision.

Levesque appealed to this court. On May 7, 2019 this court

granted Levesque’s appeal and remanded. See doc. no. 13. This

court awarded Tillinghast $2,780 in EAJA fees for his successful

representation before this court. On December 20, 2019, an ALJ

issued a favorable decision finding Levesque disabled as of

3 December 30, 2010. The ALJ awarded Levesque $104,228 in past-

due benefits.

On March 27, 2020, Tillinghast petitioned the court seeking

$26,057.00 in attorney’s fees, an amount equal to 25 percent of

Levesque’s past-due benefits, pursuant to both

(b)(1) and the Agreement. In support of his motion,

Tillinghast provided the court with a billing statement showing

that he spent 15.5 hours representing Levesque in his appeal: 14

attorney hours billed at a rate of $190 per hour, and 1.5

paralegal hours billed at a rate of $80 per hour. See doc. no.

17, Ex. D.2

The Commissioner filed a response arguing that it may be

unreasonable to award Tillinghast $26,057, a reimbursement rate

of $1,681 an hour, because that award may constitute a windfall.

Doc. no. 19 at 4-5.

STANDARD OF REVIEW

Section 206(b) of the Social Security Act, 42 U.S.C § 406(b)

allows attorneys to recover up to 25% of a claimant’s past-due

benefits as compensation for successfully representing the

claimant in federal court. Courts may only award fees for work

2 Tillinghast also provided the court with a billing statement showing that he spent additional hours representing Levesque on the same claim outside the federal court: 46.5 attorney hours billed at $300 per hour and 15.4 paralegal hours billed at $125 per hour. 4 done before the court and may not grant fees for work done

before the SSA. See

(b)(1)(A); Clark v. Astrue,

(9th Cir. 2008) (“[Section] 406(b) empowers

courts to award attorney’s fees based only on representation

before the court.”). Where, as is often the case, attorneys

enter into fee agreements with claimants, courts generally defer

to these agreements, so long as they are “reasonable.” See

Gisbrecht v. Barnhart,

(2002).

In Gisbrecht, the United States Supreme Court held that

courts should consider several factors when determining whether

a fee award is reasonable: (1) the character of representation;

(2) the results achieved; (3) whether the attorney is

responsible for a delay and will profit from an accumulation of

benefits during the pendency of the case in court; and (4)

whether the benefits are large in comparison to the amount of

time counsel spent on the case. See Giles v. Saul, No. 17-CV-

659-PB,

, at *4 (D.N.H. Feb. 20, 2020) (citing

Gisbrecht,

). A court may exercise discretion

and reduce the attorney’s fee to a “reasonable” amount in order

to avoid awarding counsel a windfall. Gisbrecht,

; see also Rodriquez v. Bowen,

(6th Cir.

1989).

5 DISCUSSION

Tillinghast requests 25 percent of Levesque’s awarded

$104,228 past-due benefits pursuant to § 406(b). He argues that

the 25 percent award is in accordance with the fee agreement and

does not exceed the limit set in § 406(b)(1)(A). He asserts

this award is reasonable given the nature of his representation

and the absence of any reason why such an award would be unjust.

I. Section 406(b) Fees Under the Fee Agreement

Tillinghast’s Agreement with Levesque does not mention

section 406(b) fees, which are awarded for successful

representation before a federal district court. The Agreement

only mentions § 406(a)(2)(A) fees, which are awarded for

successful representation before the Commissioner. Doc. no. 17,

Ex. B. Therefore, the court finds that the plain language of

the fee agreement does not permit Tillinghast to recover

attorney’s fees for work done before this court. See Giles,

, at *3 (concluding that the plain language of the

fee agreement did not provide any basis for awarding attorney’s

fees under section 406(b)(1)); Mounce v. Colvin, No. 10-CV-560-

PB,

, at *2 (D.N.H. Aug. 23, 2016) (same).

6 II. Award of Attorney’s Fees

Even without an enforceable fee agreement, however,

Tillinghast may recover fees for his work before this court so

long as the court determines the requested fees are within the

25 percent limit set by statute and are reasonable. See

(b)(1)(A); Gisbrecht,

.

This court has previously used a “blended” approach to

determine whether an attorney’s fee is reasonable. See Giles,

, at *3; see also Mounce,

, at *2.

This approach combines the “lodestar” method, where courts

multiply the number of hours reasonably devoted to each case by

a reasonable hourly fee, and the “reasonableness” test that

considers the factors set forth in Gisbrecht. Gisbrecht,

. As in prior cases, the court applies the

blended approach here.

III. Calculation

Both parties agree that Tillinghast spent 14 attorney hours

and 1.5 paralegal hours representing Levesque before the federal

district court in this case. He billed $190 for attorney hours

and $80 for paralegal hours. Doc. no. 17, Ex. D. After

multiplying Tillinghast’s reported hours by the respective

billing rates, the court concludes his lodestar equals $2,780.

The court now applies the Gisbrecht factors to this starting

7 point. The first three Gisbrecht factors—the character of

representation, the results achieved, and attorney

responsibility for any delay—support increasing Tillinghast’s

fee from the lodestar. See Gisbrecht,

.

Tillinghast’s work before this court took considerable skill and

was effective: he won Levesque several years of back benefits

worth $104,228.00. Doc. no. 17 at ¶ 3. Moreover, there is no

indication that Tillinghast engaged in any delay tactics to

increase his fee. Additionally, because Levesque paid no fee

up-front, Tillinghast risked not being compensated at all for

his work. Doc. no. 17 at ¶ 6. However, the fourth Gisbrecht

factor—whether “the benefits are large in comparison to the

amount of time counsel spent on the case,” Gisbrecht, 535 U.S.

at 808—supports decreasing Tillinghast’s fee from the 25 percent

allowed by statute. Tillinghast and his paralegal only spent

15.5 hours representing Levesque before this court and his

requested $26,057 fee equals an hourly rate of $1,681.09. This

amount is more than nine times the lodestar.

After considering the Gisbrecht factors, the court concludes

that an award of $11,120, four times the lodestar, is

reasonable. While this fee is significantly lower than the

$1,681 per hour that Tillinghast requests, it is significantly

higher than his billed hourly rate of $190. This fee is also

well within the range approved by this and other courts. See 8 Giles,

, at *4 (decreasing an attorney’s fee award

from the requested 25 percent ($2,212 per hour) to four times

the lodestar (over $800 an hour); Mounce,

, at *3

(awarding twice the lodestar, $500 per hour, after weighing the

Gisbrecht factors); Paula K. v. Saul, No. 5:15-CV-00084,

, at *4 (W.D. Va. Dec. 3, 2019) (finding that an award

equal to the lodestar, approximately $250 per hour, was a

reasonable fee award); Ezekiel v. Astrue,

(D. Me. 2012) (concluding an award three times the lodestar,

$1,225 per hour, to be reasonable).

Finally, as Tillinghast acknowledged in his petition, doc.

no. 17 at ¶ 10, this award of Section 406(b) attorney’s fees

requires him to refund the EAJA fee that he has already received

to Levesque. See Gisbrecht,

.

CONCLUSION

The court grants Tillinghast’s motion and awards attorney’s

fees in the amount of $11,120.00. The court directs Tillinghast

to refund the EAJA fee of $2,780 to Levesque.

SO ORDERED.

__________________________ Landya McCafferty United States District Judge

July 29, 2020

cc: Counsel of Record.

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