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Vanbuskirk v. Colvin

United States District Court, N.D. Indiana, Fort Wayne Division

May 28, 2015

DIANA L. VANBUSKIRK, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security, Defendant.

OPINION AND ORDER

SUSAN COLLINS, Magistrate Judge.

Plaintiff Diana Vanbuskirk brought this suit to contest a denial of disability benefits by Defendant Commissioner of Social Security ("Commissioner"). (DE 1). On July 26, 2011, this Court entered an Opinion and Order that reversed the Commissioner's denial of benefits and remanded the case for further proceedings. (DE 24).

Vanbuskirk's attorney, Joseph Shull, now moves pursuant to 42 U.S.C. § 406(b) for the Court's authorization of attorney fees in the amount of $3, 203 for his representation of Vanbuskirk in federal court. (DE 33). The Commissioner does not object to the amount of Shull's fee request, but asserts that it is untimely. (DE 35). For the reasons set forth herein, Shull's motion for attorney fees will be GRANTED.

A. Factual and Procedural Background

On October 14, 2010, Shull entered into a contingent fee agreement with Vanbuskirk for his representation of her in federal court.[2] (DE 34-2). The agreement provided that Shull would "charge and receive as his fee an amount equal to twenty-five percent (25%) of the past-due benefits which are awarded to [her] family and [her] in the event [her] case is won." (DE 34-2).

On October 15, 2010, Vanbuskirk filed the instant action with this Court, appealing the Commissioner's denial of her application for disability benefits. (DE 1). On July 26, 2011, Vanbuskirk received a favorable judgment from this Court, and the case was remanded to the Commissioner for further proceedings. (DE 24).

On September 6, 2011, Vanbuskirk filed a request for attorney fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412, seeking payment for the 19.85 hours that Shull spent advocating her claim in federal court. (DE 26). Pursuant to a stipulation by the parties, the Court granted Vanbuskirk an EAJA fee award of $3, 000. (DE 32). The entire EAJA fee award, however, was offset against Vanbuskirk's outstanding debt owed to the Government; therefore, Shull did not receive any portion of the award.[3] (DE 34 at 2; DE 34-3).

On January 30, 2013, the Commissioner sent a notice of award to Vanbuskirk, stating that she was entitled to monthly disability benefits beginning September 2010, and past-due benefits of $25, 379 for September 2010 through December 2012. (DE 34 at 1, 3).

Two years later, on February 5, 2015, Shull filed the instant motion, seeking the Court's approval of a payment of $3, 203 in attorney fees from Vanbuskirk pursuant to the contingent fee agreement and § 406(b). (DE 33). As stated earlier, the Commissioner does not object to the amount of the fee request, but asserts that it is untimely. (DE 35).

B. Legal Standard

Fees for representing social security claimants, both administratively and in federal court, are governed by 42 U.S.C. § 406. Gisbrecht, 535 U.S. at 793, 794. Section 406(a) controls fees for representation in administrative proceedings, and § 406(b) controls attorney fees for representation in court. Id. Unlike fees obtained under the EAJA, [4] the fees awarded under § 406 are charged against the claimant, not the government. Id. at 796.

Under § 406(a), an attorney who has represented a claimant may file a fee petition or fee agreement with the Commissioner to receive fees for his or her representation at the administrative level. 42 U.S.C. § 406(a); Gisbrecht, 535 U.S. at 794-95; 20 C.F.R. §§ 404.1725(a), 416.1525(a). There are, however, limits on the amount that the Commissioner can award pursuant to § 406(a). Gisbrecht, 535 U.S. at 794-95.

Under § 406(b), an attorney who has successfully represented a claimant in federal court may receive "a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment...."[5] 42 U.S.C. § 406(b)(1)(A); Gisbrecht, 535 U.S. at 795. Furthermore, § 406(b) has been harmonized with the EAJA; although fee awards may be made under both the EAJA and § 406(b), a claimant's attorney must refund to the claimant the amount of the smaller fee. Gisbrecht, 535 U.S. at 796 (explaining that "an EAJA award offsets an award under Section 406(b)").

Unlike the award by the Commissioner under § 406(a), the court is required under § 406(b) to review for reasonableness the attorney fees yielded by contingent fee ...


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