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MATTER v. BOWEN

March 23, 1987

Michael Matter, Plaintiff
v.
Otis R. Bowen, Secretary of Health and Human Services, Defendant



The opinion of the court was delivered by: NEALON

 William J. Nealon Chief Judge, Middle District of Pennsylvania

 Plaintiff, Michael W. Matter, Sr., initially filed an application for Social Security Disability Insurance benefits on October 23, 1980. He alleged that he became disabled on October 9, 1980 due to "curvatures of the spine, left leg shorter than right" (Tr. 71). He was not represented by counsel at this time, and he did not assert his non-exertional impairments which include illiteracy rooted in neurological dysfunctioning, a short attention span, concentration difficulties and developmental mathematics problems or disorders. His application was denied on December 2, 1980, and he did not seek any further action.

 Plaintiff filed a second application for disability benefits on January 20, 1982. On this occasion, he alleged that he became disabled in February 1979 due to "herniated disc -- pinched my nerve, HBP, hypertension, back surgery, arthritis in neck, reading problem" (Tr. 77). The second application was likewise denied, and plaintiff sought reconsideration. While his case was pending on reconsideration, he retained legal counsel who from that time forward has represented plaintiff on a contingent fee basis. *fn1"

 On reconsideration, plaintiff's claim was again denied, and he then requested a hearing before an ALJ. In November 1982, the ALJ denied plaintiff's claim, and the Appeals Council adopted the ALJ's decision in February 1983.

 Plaintiff filed an appeal by way of a Complaint in this court in April 1983. The parties filed cross summary judgment motions, and Magistrate Raymond J. Durkin issued a Report on November 30, 1984 in which he concluded that the government's findings were not supported by substantial evidence and recommended that this action be remanded to the Secretary. The Magistrate found that the ALJ had failed to give proper consideration to plaintiff's non-exertional impairments other than his illiteracy.

 By Order dated February 8, 1984, the court remanded this case to the Secretary. The Appeals Council then remanded the case to an ALJ who conducted hearings on October 19, 1984 and October 26, 1984. In May 1985, the ALJ recommended that plaintiff's claim be denied. In January 1986, the Appeals Council again remanded the case for reconsideration of plaintiff's mental impairments under Section 5 of the Social Security Disability Benefits Reform Act of 1984. An ALJ conducted a fourth hearing in June 1986. In the following month, the ALJ recommended re-opening plaintiff's 1980 application and granting him disability status as of October 1980. The Appeals Council adopted the ALJ's recommendation in October 1986. On November 17, 1986, the court entered judgment, per the parties' stipulation, in favor of plaintiff without prejudice to his right, or the right of his counsel, to apply for attorney's fees.

 Presently before the court are motions of plaintiff's counsel for attorney's fees under the Social Security Act (SSA), 42 U.S.C. § 406(b), and the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. These motions and a supporting brief were filed on December 12, 1986. In addition, plaintiff's counsel corresponded with the court by letters dated January 9, 1987 and January 29, 1987, and the Secretary filed a supplement to his briefs on January 21, 1987.

 The request of plaintiff's counsel for attorney's fees is now ripe for disposition. For the reasons set forth below, the court will award plaintiff's counsel $ 4,620.00 under the SSA, will award him $ 2,338.62 under the EAJA and will direct him to remit $ 2,338.62 to plaintiff.

 ANALYSIS

 Attorney's Fees under the SSA

 Under 42 U.S.C. § 406(b), when a claimant receives a favorable determination, counsel may obtain a reasonable fee not in excess of twenty-five percent of the total past-due benefits. The total past-due benefits include the past-due benefits of all recipients on the claimant's Social Security account, i.e., the claimant and his eligible dependents. Hopkins v. Cohen, 390 U.S. 530, 20 L. Ed. 2d 87, 88 S. Ct. 1146 (1968). The Secretary must approve any fees for counsel's appearance before the Social Security Administration, and a district court may approve fees only for court time. Guido v. Schweiker, 775 F.2d 107 (3d Cir. 1985). Since fees granted pursuant to the SSA are deducted from claimants' awards, there are potential conflicts of interest between attorneys seeking compensation under the SSA and their clients, so district courts have an independent duty to scrutinize fee petitions. Tomallo v. Heckler, 623 F. Supp. 1046 (W.D. Pa. 1985). Finally, twenty-five percent of a claimant's past-due benefits is not an automatic entitlement. Allen v. Heckler, 588 F. Supp. 1247 (W.D.N.Y. 1984).

 In the present case, plaintiff's counsel seeks attorney's fees of $ 8,408.25 for 30.8 total court hours. The Secretary has not contested the total court time alleged, and 30.8 hours does not appear to be excessive under the circumstances of this case. Furthermore, plaintiff's counsel seeks a monetary amount which is less than twenty-five percent of the total past-due benefits awarded to plaintiff and his dependents. *fn2"

 The sole question, then, concerning the fee request of plaintiff's counsel under the SSA is whether the amount sought is reasonable. The Secretary contends that the amount requested is unreasonable because it equates to a fee in excess of $ 270.00 per hour. Document 30 at p. 2. The Secretary argues that plaintiff's counsel should be compensated at a flat rate of $ 75.00 per hour, for a total fee of $ 2,310.00 for counsel's court time. Id.

 In determining the reasonableness of the fee requested by plaintiff's counsel, the court will follow the approach utilized in Andrews v. Bowen, 640 F. Supp. 1001 (W.D.N.C. 1986). *fn3" The court in Andrews stated:

 
The number of hours spent by an attorney on a case is only one factor for the court to consider. . . . [Plaintiff's attorney] did the plaintiff a great service. Without that service, plaintiff probably would have recovered nothing of the defendant and would not be receiving disability benefits today. Courts must carefully consider the deterrent effect that whittling down fee agreements would have on whether future plaintiffs can find lawyers to take their cases. It would not serve the remedial intent ...

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