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Moore v. Commissioner of Social Security

United States District Court, N.D. Indiana, Fort Wayne Division

August 21, 2017

SANDRA K. MOORE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Carolyn W. Colvin, Acting Commissioner of SSA, Defendant.


          Susan Collins United States Magistrate Judge

         Plaintiff 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).

         Moore's 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.

         A. Factual and Procedural Background

         On May 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.[1] (DE 40-2).

         On May 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).

         On 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).

         On 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).

         On 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).

         B. Legal Standard

         Fees 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, [2] the fees awarded under § 406 are charged against the claimant, not the government. Id. at 796.

         Under § 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.

         Under § 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 . . . .”[3] 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)”).

         Unlike 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 ...

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