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Caldwell v. Berryhill

United States District Court, S.D. Indiana, New Albany Division

May 18, 2017

RANDY P. CALDWELL, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration. Defendant.

          ORDER ON PLAINTIFF'S MOTION FOR ATTORNEY'S FEES

          Tim A. Baker United States Magistrate Judge

         I. Introduction

         Plaintiff 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.

         II. Background

         On 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 review.

         On June 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.]

         On 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.

         III. Legal Standard

         Section 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.

         A 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).

         IV. Discussion

         Caldwell's 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 short.

         A. The non-attorney work is reasonable

         Caldwell 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, ...


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