REPORT AND RECOMMENDATION2

JOEL B. TOOMEY, Magistrate Judge.

THIS CAUSE is before the Court on Richard A. Culbertson's Unopposed Request for Authorization to Charge a Reasonable Fee Pursuant to 42 U.S.C. § 406(b) ("Motion") (Doc. 24). For the reasons set forth herein, the undersigned respectfully RECOMMENDS that the Motion be GRANTED.

I. Background

Mr. Culbertson successfully represented Plaintiff in this appeal of an adverse decision by the Social Security Administration ("SSA"). (See Docs. 17 & 18.) The case came before this Court, was reversed and remanded, and Plaintiff was ultimately awarded $74,948.00 in past-due benefits. (See Doc. 24 at 2, Doc. 24-2 at 2.) The SSA has withheld $18,737.00 for a potential attorney's fee, representing 25 percent of the past-due benefits awarded to Plaintiff. (Id.)

Section 406(b)(1)(A) of Title 42 of the U.S. Code limits any fee award Plaintiff's attorney may receive to a total of 25 percent of Plaintiff's recovered past-due benefits. Mr. Culbertson and Plaintiff had a fee agreement providing for attorney's fees equal to 25 percent of Plaintiff's past-due benefits. (Doc. 24-1.) In this case, Mr. Culbertson requests a fee award in the amount of $14,970.58, which represents 25 percent of Plaintiff's past-due benefits minus the $3,766.42 he has already collected pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 ($18,737.00 - $3,766.42 = $14,970.58).3 (Doc. 24 at 2.) Defendant does not oppose the Motion. (Id. at 3.)

II. Standard

Under 42 U.S.C. § 406(b), attorneys who secure a favorable result for their clients upon remand from federal court may petition the Court for a fee "not 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). "[T]he 25% cap in § 406(b)(1)(A) applies only to fees for court representation, and not to the aggregate fees awarded under §§ 406(a) and (b). . . ." Culbertson v. Berryhill, ___ S.Ct. ___, Case No. 17-773, 2019 WL 122163, at *6 (Jan. 8, 2019). "[A]n attorney who receives fees under both the EAJA and 42 U.S.C. § 406(b) must refund the smaller fee to his client. . . ." Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1274 (11th Cir. 2010). However, "the attorney may choose to effectuate the refund by deducting the amount of an earlier EAJA award from his subsequent 42 U.S.C. § 406(b) fee request." Id.

In capping the fee at 25 percent, "Congress . . . sought to protect claimants against `inordinately large fees' and also to ensure that attorneys representing successful claimants would not risk `nonpayment of [appropriate] fees.'" Gisbrecht v. Barnhart, 535 U.S. 789, 805 (2002). In Gisbrecht, the Supreme Court stated:

Id. at 807.

The first place that the Court should turn to in assessing the reasonableness of a fee is the parties' fee agreement. Id. at 808. In conducting its independent check to ensure that a fee is reasonable, the Court may appropriately reduce the fee for a number of reasons, including "the character of the representation and the results the representative reached," any delay caused by counsel "so that the attorney will not profit from the accumulation of benefits during the pendency of the case in court," and/or fees that "are large in comparison to the amount of time counsel spent on the case." Id. (citing cases that disallow "windfalls for lawyers").

III. Analysis

The retainer agreement for this federal court appeal provides that Plaintiff agreed to pay his attorney 25 percent of the past-due benefits awarded to him. (See Doc. 24-1.) Mr. Culbertson requests an award of $14,970.58, which represents 25 percent of Plaintiff's past-due benefits minus the $3,766.42 he has already collected as an EAJA fee. (Doc. 24 at 2.) The Commissioner does not object to the Motion. (Id. at 3.) Therefore, the undersigned recommends that the requested award is presumptively reasonable pursuant to Gisbrecht.

Moreover, the undersigned recommends that there is no reason for a reduction of the amount of the requested fee. With respect to the character of the representation and the results achieved, Mr. Culbertson provided competent representation and achieved a favorable result. The Court granted the Commissioner's Unopposed Motion for Remand, reversed the Commissioner's decision, remanded the case to the Commissioner for further proceedings, and Plaintiff ultimately prevailed on remand. (See Docs. 17, 18, & 24-2.) Additionally, there is no indication of any undue delay caused by counsel. Finally, the undersigned recommends that the attorney's fee requested, which equates to an hourly rate of approximately $610.00 ($18,737.00/30.7 hours = approximately $610.00), does not result in a windfall to counsel.4 See, e.g., Foster v. Astrue, Case No. 3:08-cv-960-J-12JRK (Doc. 46) (M.D. Fla. Jan. 4, 2012) (adopting a magistrate judge's report and recommendation and approving a contingency fee, which amounted to $1,025.28 per hour, as reasonable under § 406(b)); McKee v. Comm'r of Soc. Sec., Case No. 6:07-cv-1554-Orl-28KRS, 2008 WL 4456453, at *6-7 (M.D. Fla. Sept. 30, 2008) (approving a contingency fee that amounted to $1,100 per hour as reasonable under § 406(b)); Watterson v. Astrue, Case No. 3:06-cv-369-J-HTS, 2008 WL 783634, at *1-2 (M.D. Fla. Mar. 21, 2008) (finding a contingency fee, which amounted to $1,121.86 per hour, to be reasonable under § 406(b)); Bregan v. Barnhart, Case No. 6:02-cv-458-Orl-22KRS (Docs. 26 & 36) (M.D. Fla. Sept. 21, 2006) (approving a contingency fee translating to $1,116.11 per hour under § 406(b)). Thus, the undersigned recommends that a reduction to prevent a windfall is not necessary.

Therefore, the undersigned recommends that the Motion be granted and Mr. Culbertson be awarded $14,970.58 in net fees, reflecting the EAJA fee reduction.

Accordingly, it is respectfully RECOMMENDED:

1. The Motion (Doc. 24) be GRANTED.

2. The Commissioner be directed to pay directly to Richard A. Culbertson, Esq. the sum of $14,970.58 for attorney's fees.

3. The Clerk of Court be directed to enter judgment accordingly.