United States District Court, N.D. Indiana
TONY B. HARRIS, Plaintiff,
CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
William C. Lee, Judge United States District Court
matter is before the court on a motion for an award of
attorneys fees under 42 U.S.C. §406(b), filed by the
Plaintiff, Tony B. Harris, on December 12, 2016. The
defendant Commissioner filed a response on January 12, 2017,
indicating no opposition to the motion.
Plaintiff filed claims for Disability Insurance Benefits (DIB
- Title II) on December 21, 2010. (Dkt. 12 at 142-48)
Plaintiff's claim was denied on March 22, 2011.
Id. at 83-85. Plaintiff filed a request for
reconsideration on April 18, 2011, id. at 89-90, but
was denied again on June 2, 2011. Id. at 91-97.
Plaintiff requested an administrative hearing on July 5,
2011. Id. at 98-99. On July 26, 2012, Plaintiff
appeared in Valparaiso, Indiana, for a hearing before
Administrative Law Judge (ALJ) Edward Studzinski of the
Office of Disability Adjudication and Review (ODAR).
Id. at 44-80. On November 15, 2012, ALJ Studzinski
issued an unfavorable determination. Id. at 23-43.
Plaintiff filed a request for review with the Appeals
Council, but the Appeals Council denied the request on July
21, 2014. Id. at 1-9.
retained Keller & Keller LLP for representation on August
14, 2014. (Plaintiff's Exhibit A) Plaintiff agreed that
“if any of my claim(s) progress to the U.S. Courts and
is then favorably decided, then my attorney may elect to
motion the U.S. Courts to approve a fee of 25 percent of all
past due benefits without limitation pursuant to 42 U.S.C.
section 406(b) . . . .” Id. at 1.
then timely filed this civil action on September 22, 2014.
(Dkt. 1) On September 8, 2015, the undersigned issued an
order to reverse and remand the case for further
consideration pursuant to sentence four of 42 U.S.C. §
405(g). (Dkt. 30) On December 8, 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, 416.50. (Dkt. 34) Plaintiff's
attorney received this payment. After the claim was
reconsidered by the agency, Plaintiff's claim for
disability benefits was approved April 12, 2016.
(Plaintiff's Exhibit B) Plaintiff has been awarded
past-due benefits totaling $62, 065.00. (Plaintiff's
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. 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. §
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
attorney contends, and the Commissioner does not dispute,
that the requested fee of $15, 516.25 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
noted, Plaintiff 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 $62, 065.00. (Plaintiff's Exhibit C)
Plaintiff's attorney therefore requests that the Court
approve an overall award of $15, 516.25 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.
noted, Counsel 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, 416.50. (Dkt. 31) This amount was
received by Counsel and Counsel states this amount will be
refunded upon receipt of the 406(b) award.
as Plaintiff's attorney has followed the terms of his
agreement and the EAJA statute, this court will grant the fee
basis of the foregoing, Plaintiff's motion for an award
of attorney fees pursuant to 42 U.S.C. § 406(b) [DE 38],