United States District Court, S.D. Indiana, New Albany Division
RANDY P. CALDWELL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration. Defendant.
ORDER ON PLAINTIFF'S MOTION FOR ATTORNEY'S
Baker United States Magistrate Judge
Randy P. Caldwell seeks an award of attorney's fees under
42 U.S.C. § 406(b)(1) in the amount of $22, 557.
Caldwell demonstrates this award is reasonable and the
Commissioner's opposition is unconvincing. For reasons
explained below, the Court grants Caldwell's motion
[Filing No. 34] for an award of attorney's fees.
February 16, 2012, Caldwell applied for Disability Insurance
Benefits. The Social Security Administration denied
Caldwell's claim initially and upon reconsideration. An
Administrative Law Judge likewise denied Caldwell's claim
and the Appeals Council denied Caldwell's request for
10, 2015, Caldwell, through his attorney, filed the present
appeal of the SSA's denial decision. Caldwell submitted a
brief in support of remand and the case was set for an oral
argument on March 18, 2016. However, on March 7, 2016, the
Commissioner agreed to a joint remand for further
consideration. On June 17, 2016, upon a joint motion, the
Court awarded Caldwell $3, 669 in attorney's fees under
the Equal Access to Justice Act. [Filing No. 32.]
September 23, 2016, the agency made a fully favorable
determination, and awarded Caldwell past-due DIB in the
amount of $90, 228 and a monthly payment of $1, 370.60.
[Filing No. 34-2; Filing No. 34-3.]
Caldwell's attorneys then submitted the present petition
for § 406(b) fees, and attached the contingency fee
agreement with Caldwell, assigning 25% of any past-due
benefits awarded to Caldwell's attorneys. [Filing No.
34-1.] The Commissioner opposes Caldwell's petition.
406(b)(1) allows the Court to award a reasonable
attorney's fee for work performed, limited to 25% of
past-due benefits. 42 U.S.C. § 406(b)(1).
Courts must conduct an “independent check” of the
contingency agreement and determine whether such award of
attorney's fees is reasonable under the circumstances.
Wyatt v. Colvin, No. 1:11-CV-00874-MJD, 2014 WL
50194, at *1 (S.D. Ind. Jan. 6, 2014) (citing Gisbrecht
v. Barnhart, 535 U.S. 789, 807 (2002)). The burden is on
Caldwell's attorney to show that the requested fee award
is reasonable. Wyatt, 2014 WL 50194, at *1.
prevailing plaintiff's counsel can pursue and be awarded
fees under both § 406 and EAJA. Gisbracht, 535
U.S. at 796. However, if the Court awards fees under both
§ 406(b) and EAJA, the attorney can only keep the larger
of the two and must return the lesser amount to the
plaintiff. Mathews-Sheets v. Astrue, 653 F.3d 560,
562 (7th Cir. 2011).
petition sets forth sufficient information to carry his
burden. Caldwell's attorney submitted the contingency fee
agreement, the fully favorable decision from SSA, the DIB
award letter, and a ledger reporting the time expended in
this case. The Commissioner does not argue the contingency
agreement is unreasonable or oppose an award. Rather, the
Commissioner contends that the amount of the fee requested by
Caldwell is unreasonable for two main reasons: (1)
non-attorney hours are compensated at the same rate as
attorney hours, and (2) the implied hourly rate is on the
high end. Despite Caldwell's failure to reply, the
Commissioner's arguments [Filing No. 38] fall
The non-attorney work is reasonable
submits a ledger showing the total time spent working on this
case was 28.7 hours, divided between two attorneys, a law
clerk, and a staff member. [Filing No. 34-4] A law
clerk spent 0.4 hours preparing the complaint and 18.6 hours
drafting a statement of the case, including consulting time.
Id. A staff member spent 0.3 hours downloading the
administrative record. Id. The attorneys spent a
combined total of 9.4 hours reviewing the merits of the
appeal, reviewing and filing the complaint, appearing,
reviewing the briefing order, ...