REPORT AND RECOMMENDATION
GREGORY J. KELLY, Magistrate Judge.
This cause came on for consideration without oral argument on the following motion:
On October 9, 2013, Plaintiff and her counsel, Richard A. Culbertson, Esq., entered into a contingency fee agreement (the "Agreement") whereby Plaintiff agreed to pay counsel a fee of twenty-five percent of the total amount of past-due benefits ultimately awarded. Doc. No. 28-1. On October 10, 2014, judgment was entered reversing and remanding this case to the Commissioner of Social Security (the "Commissioner") for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). Doc. No. 25. On December 10, 2014, Plaintiff was awarded attorney's fees in the amount of $4,785.90 under the Equal Access to Justice Act, 28 U.S.C. § 2412(d) (the "EAJA"). Doc. No. 27.
On March 29, 2017, the Commissioner sent Plaintiff a Notice of Award, indicating that she is withholding $20,988.50, which is twenty-five percent of Plaintiff's total award of past-due benefits, in anticipation of paying attorney's fees. Doc. No. 28-2 at 1, 4.
Section 406(b)(1)(A) provides, in relevant part, as follows:
The statute further provides that it is unlawful for an attorney to charge, demand, receive, or collect for services rendered in connection with proceedings before a court any amount in excess of that allowed by the court. See id.; § 406(b)(2). Accordingly, to receive a fee under this statute, an attorney must seek court approval of the proposed fee, even if there is a fee agreement between the attorney and the client. In Bergen v. Commissioner of Social Security, 454 F.3d 1273, 1277 (11th Cir. 2006), the Eleventh Circuit held that "§ 406(b) authorizes an award of attorney's fees where the district court remands the case to the Commissioner of Social Security for further proceedings, and the Commissioner on remand awards the claimant past-due benefits." Since Plaintiff was awarded past-due benefits following remand (see Doc. No. 28-2), the Court may award attorney's fees under Section 406(b).
A. Fee Awards under Section 406(b).
Counsel requests an award of $14,988.50 in attorney's fees, which represents less than twenty-five percent of past-due benefits awarded. Doc. No. 28 at 2, 3, 7; Doc. No. 28-2 at 4. The aggregate of §§ 406(a) and 406(b) fees awarded may not exceed twenty-five percent of past-due benefits awarded. Dawson v. Finch, 425 F.2d 1192, 1195 (5th Cir. 1970).
B. Reasonableness of Contingent Fee.
To evaluate an attorney's Section 406(b) petition, the Court must determine whether the fee requested is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 809 (2002). "[T]he best indicator of the `reasonableness' of a contingency fee in a social security case is the contingency percentage actually negotiated between the attorney and client, not an hourly rate determined under lodestar calculations." Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990). However, "[a] fee pursuant to a contingency contract is not per se reasonable." McGuire v. Sullivan, 873 F.2d 974, 979 (7th Cir. 1989). The contingency fee negotiated by the claimant and counsel is not reasonable if the agreement calls for fees greater than the twenty-five percent statutory limit, the agreement involved fraud or overreaching in its making, the resolution of the case was unreasonably delayed by the acts of the claimant's attorney, or would provide a fee "so large as to be a windfall to the attorney." Wells, 907 F.2d at 372 (citing McGuire, 873 F.2d at 981, and Rodriquez v. Bowen, 865 F.2d 739, 746 (6th Cir. 1989)). A contingency fee is more likely to be reasonable the greater the risk that the claimant would not prevail. McGuire, 873 F.2d at 985 ("A finding of riskiness is an essential one in granting a full twenty-five percent contingent fee award in a social security case."). Finally, "because Section 406(b) requires an affirmative judicial finding that the fee allowed is `reasonable,' the attorney bears the burden of persuasion that the statutory requirement has been satisfied." Gisbrecht, 535 U.S. at 807 n.17.
In Yarnevic v. Apfel, 359 F.Supp.2d 1363, 1365 (N.D. Ga. 2005), the Northern District of Georgia applied the following analysis:
(Citations omitted.) Courts in the Middle District of Florida have adopted this analysis. E.g., McKee v. Comm'r of Soc. Sec., No. 6:07-cv-1554-Orl-28KRS, 2008 WL 4456453, at *5 (M.D. Fla. Sept. 30, 2008); Whitaker v. Comm'r of Soc. Sec., No. 6:06-cv-1718-Orl-18KRS, 2008 WL 4710777, at *2-3 (M.D. Fla. Oct. 23, 2008).
Counsel represents that he and his associate spent a total of 32.2 hours on Plaintiff's case before this Court. Doc. No. 28 at ¶ 5. As a result of counsel's work, Plaintiff was successful on her claim. Doc. Nos. 23, 24. The Agreement demonstrates that Plaintiff was aware of and agreed to pay attorney's fees equal to twenty-five percent of the total past-due benefits to which she was entitled. Doc. No. 28-1. In the Motion, counsel requests an award of $14,988.50. Doc. No. 28 at 7. After reviewing the results obtained, the Motion, and the contingent fee agreement, the undersigned finds that an award of $14,988.50 in attorney's fees is reasonable.
Accordingly, it is
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.