United States District Court, N.D. Indiana, Fort Wayne Division
SANDRA K. MOORE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Carolyn W. Colvin, Acting Commissioner of SSA, Defendant.
OPINION AND ORDER
Collins United States Magistrate Judge
Sandra K. Moore brought this suit to contest a denial of
disability benefits by Defendant Commissioner of Social
Security (“Commissioner”). (DE 1). On September
2, 2015, this Court entered an Opinion and Order reversing
the Commissioner's denial of benefits and remanding the
case for further proceedings. (DE 32).
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 $7, 864.75 for his representation of
Moore in federal court. (DE 39). The Commissioner does not
oppose Moore's fee request. (DE 42). For the following
reasons, Shull's motion for attorney fees will be
GRANTED, subject to the adjustments set forth herein.
Factual and Procedural Background
28, 2014, Shull entered into a contingent fee agreement with
Moore for his representation of her in federal court, in
which Moore agreed to pay him 25% of any past-due benefits
awarded to her. (DE 40-2).
28, 2014, Moore filed the instant action with this Court,
appealing the Commissioner's denial of her application
for disability benefits. (DE 1). On September 2, 2015, Moore
received a favorable judgment from this Court, and the case
was remanded to the Commissioner for further proceedings. (DE
32; DE 33).
November 11, 2015, Moore filed a motion for attorney fees
under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412, seeking payment for the 31.30 hours of
work Shull spent advocating her claim in federal court. (DE
35 to DE 37). The Court granted Moore's motion and
awarded her an EAJA fee award of $5, 978.30. (DE 38).
November 2, 2016, the Commissioner sent a notice of award to
Moore, informing that she was entitled to monthly disability
benefits beginning May 2010 and past-due benefits of $55,
459.00, of which $13, 864.75 was withheld toward payment of
attorney fees. (DE 40-1). Shull states that Attorney Kenneth
Schuck, who represented Moore before the Social Security
Administration, requested and received $6, 000 (less a
service fee of 6.3 percent of the fee amount) from the amount
withheld by the Commissioner, in payment for Schuck's
representation of Moore at the agency level. (DE 40 at 2).
August 1, 2017, Shull filed the instant motion, together with
supporting documentation, seeking the Court's approval of
a payment of $7, 864.75 for attorney fees before this Court.
(DE 39 to DE 41). On August 14, 2017, the Commissioner filed
a response indicating that it does not object to Shull's
request. (DE 42).
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,  the fees awarded under
§ 406 are charged against the claimant, not the
government. Id. at 796.
§ 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.
§ 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 . . .
.” 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)”).
the award by the Commissioner under § 406(a), courts are
required under § 406(b) to review for reasonableness the
attorney fees yielded by contingent fee ...