United States District Court, N.D. Indiana.
DALE W. ROCK, Plaintiff,
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
William C. Lee, United States District Court Judge.
matter is before the court on an Amended Motion for an Award
of Attorneys Fees Under 42 U.S.C. (b), filed by the
Plaintiff, Dale W. Rock, on July 28, 2016. The defendant
Commissioner has not responded to the motion. However, in his
motion, Plaintiff indicates that he has discussed the fee
request with the Commissioner’s counsel, and the
Commissioner has indicated that it would not oppose the
counsel states that in his original fee request [DE 36], he
requested a fee of $22, 589.45. After discussing the fee with
the Commissioner’s counsel, Plaintiff’s attorney
has now amended that figure to $21, 498.95. This new figure
is based on information from the Commissioner that Plaintiff
received $4, 362.00 in SSI benefits on a subsequent
application and that such amount would be deducted from
Plaintiff’s past-due benefits in accordance with the
Agency’s windfall-offset rules.
filed a claim for Disability Insurance Benefits (DIB-Title
II) and Supplemental Security Income Benefits (SSI-Title XVI)
on December 30, 2011. (Dkt. 13 at 140-52) Plaintiff’s
claims were denied on February 7, 2012. Id. at 70,
74. Plaintiff retained Keller & Keller LLP for
representation on April 1, 2012. (Plaintiff’s Exhibit
A) Plaintiff agreed that “if any of my claim(s)
progress beyond the Office of Disability Adjudication and
Review administrative hearing level for review . . . and is
then favorably decided that my attorney . . . may elect to
use the fee petition process to petition for up to 25% of all
past due benefits without limitation.” Id. He
also agreed to “pay the costs of development of my
claim(s), including but not limited to . . . costs for
medical records/reports that may be requested by my attorney
at his/her discretion.” Id.
filed a request for reconsideration, but was denied again on
June 6, 2012. (Dkt. 13 at 85, 92) Plaintiff requested an
administrative hearing on June 25, 2012. Id. at
99-100. On March 13, 2013, Plaintiff appeared in Valparaiso,
Indiana for a hearing before Administrative Law Judge (ALJ)
Mario G. Silva of the Office of Disability Adjudication and
Review (ODAR). Id. at 39-65. On April 24, 2013, ALJ
Silva issued an unfavorable determination. Id. at
20-33. Plaintiff filed a request for review with the Appeals
Council, but the Appeals Council denied the request on May 9,
2014. Id. at 1-4. Plaintiff timely filed this civil
action on July 8, 2014. (Dkt. 1) On August 11, 2015, this
Court issued an order remanding the Commissioner’s
unfavorable determination for further consideration under
sentence four of 42 U.S.C. § 405(g). (Dkt. 32, 33) On
November 17, 2015 Plaintiff’s attorney obtained an
order for an award of attorney’s fees under the Equal
Access to Justice Act (“EAJA”), 28 U.S.C. §
2412(a)-(d), from this Court in the amount of $4, 100.00.
(Dkt. 35) Plaintiff’s attorney received this payment.
his claim was reconsidered by the Agency, Plaintiff’s
claim for disability benefits was approved June 6, 2016.
(Plaintiff’s Exhibit B) Plaintiff has been awarded
past-due Title II benefits totaling $90, 357.80.
(Plaintiff’s Exhibit C)
Social Security Act’s provisions governing fees for
representation are found in 42 U.S.C. § 406; see
Gisbrecht v Barnhart, 535 U.S. 789, 794 (2002)
(reviewing history of attorney fees under the Social Security
Act). Section 406(a) governs fees for representing claimants
in the administrative process, so a federal court does not
determine whether to award any fee for representation under
section 406(a). 42 U.S.C. § 406(a). Section 406(b)
governs attorney fees for successful litigation for benefits
under Title II of the Social Security Act such as Disability
Insurance Benefits, 42 U.S.C. §§ 416(I), 423, and,
pursuant to § 302 of Public Law 108-203, for litigation
for benefits under Title XVI of the Social Security Act or
Supplemental Security Income, 42 U.S.C. §§ 1382,
1382a. 42 U.S.C. § 406(b). Section 406(b)(1) provides:
Whenever a court renders a judgment favorable to a claimant .
. . who was represented before the court by an attorney, the
court may determine and allow as part of its judgment a
reasonable fee for such representation, not in excess of 25
percent of the total of the past-due benefits . . . .
42 U.S.C. § 406(b)(1).
court must review all fee requests under § 406(b).
Congress intended such review not to override the claimant
and counsel’s fee arrangement but rather to act as an
“independent check” to ensure that the
arrangement yielded a reasonable result in the particular
case. Gisbrecht, 535 U.S. at 807. “Congress
has provided one boundary line: Agreements are unenforceable
to the extent that they provide for fees exceeding 25 percent
of the past-due benefits.” Id. Within the 25%
boundary, the attorney for the successful claimant must show
that the fee sought is reasonable for the services rendered.
Id. In making this determination, the court may
consider the character of the representation and the results
obtained, reducing an award if the attorney is responsible
for delay in the proceeding that had the effect of inflating
past-due benefits, or if the fee is so large in comparison to
the amount of time counsel spent on the case that the fee
would constitute a windfall to the attorney. Id. at
present case, Plaintiff’s attorney contends that the
requested fee of $21, 498.95 is reasonable. This amount
reflects a valid contract between Plaintiff and his counsel,
the substantial risk associated with this litigation and
potential recovery, the results obtained for the Plaintiff,
the time Counsel expended on the matter and the required
refund of the fee award previously obtained under EAJA.
contracted with Plaintiff’s attorney to pay 25 percent
of past due benefits without limitation if the undersigned
represented him before a federal court and obtained a
favorable outcome. (Plaintiff’s Exhibit A) After this
litigation, Plaintiff received as past-due Title II benefits
$90, 357.80, which, as noted above, was reduced by $4, 362.00
due to Plaintiff’s receipt of SSI benefits.
(Plaintiff’s Exhibit C) Plaintiff’s attorney
therefore moves that the Court approve an overall award of
$21, 498.95-or 25 percent of the Plaintiff’s past-due
benefits. This award is within the statutory maximum of 25
percent of past due benefits and in accordance with what the
Plaintiff contracted to pay Counsel.
Court agrees that the requested fee is reasonable because the
requested fee reflects the contingent nature of the recovery.
Civil actions for Social Security claimants possess a
substantial risk of loss. Between 2005 and 2010, federal
district courts affirmed approximately half of the appealed
administrate decisions denying such claimants benefits.
See Aspects of Disability Decision Making, Social
Security Advisory Board, July 2012, Chart 65.2 It was also
uncertain that Plaintiff’s claim would be approved
following a federal court remand. Id. at Chart 51.
Because Plaintiff’s attorney ...