United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge, United States District Court
Jarrett brought this action for judicial review after the
Commissioner of Social Security denied her application for
disability insurance benefits. The court vacated the
Commissioner's decision and remanded the case to the
Social Security Administration for further proceedings. Ms.
Jarrett prevailed and was awarded $47, 937.00 in past-due
benefits. Ms. Jarrett's counsel, Joseph R. Wambach, has
received $5, 571.20 of the $6, 154.50 the court awarded him
for the services he provided pursuant to the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412(d). Mr.
Wambach's motion for authorization of attorney fees under
42 U.S.C. § 406(b) is now before the court.
attorney who has successfully represented a claimant in
federal court may receive “a reasonable fee for such
representation, not in excess of twenty- five percent of the
total past-due benefits to which the claimant is entitled by
reason of such judgment.” 42 U.S.C. §
406(b)(1)(A); Gisbrecht v. Barnhart, 535 U.S. 789,
792 (2002). While fees may be awarded under both the EAJA and
Section 406(b), “an EAJA award offsets an award under
Section 406(b).” Gisbrecht v. Barnhart, 535
U.S. at 796; see also Talbott v. Bowen, 832 F.2d
111, 112 (8th Cir. 1987) (“[I]f the award received
under the EAJA . . . is less than the 25% contingent fee
contract based upon back benefits, then claimant's
counsel may collect from the claimant the difference between
the 25% award and the award under the EAJA.”).
Wambach asks the court to authorize attorney fees in the
amount of $11, 984.25, which represents twenty-five percent
of Ms. Jarrett's past-due benefits and is within both the
parameters of Section 406(b) and the parties' contingent
fee agreement. The government hasn't objected to Mr.
Wambach's request. The court must now decide whether the
attorney fees yielded by that agreement are reasonable.
Gisbrecht v. Barnhart, 535 U.S. at 809.
Wambach argues that the amount requested, $11, 984.25,
equates to an effective rate of approximately $276.77 per
hour. He arrives at that calculation by dividing the amount
requested by the 43.3 hours his firm spent on this matter.
But he notes that only 21.9 hours were worked by attorneys;
the other 21.4 hours represent the work of non-attorney
staff. Courts have taken different approaches in considering
non-attorney work in Section 406(b) fee awards. See Beach
v. Berryhill, No. 14-CV-857-BBC, 2017 WL 3275546, at *2
(W.D. Wis. Aug. 1, 2017) (including non-attorney time when
considering reasonableness of fee award while noting that
“it appears to be an open question in this circuit
whether paralegal time may be considered in assessing the
reasonableness of a fee request under § 406(b)”);
Westlund v. Berryhill, No. 15-CV-450-JDP, 2017 WL
2389724, at *2 (W.D. Wis. June 1, 2017) (“[t]he court
considers only attorney time when calculating the
compensation rate, not paralegal or
‘administrative' time”); Acosta v.
Comm'r of Soc. Sec., No. 14-10212, 2016 WL 8094540,
at *8 (E.D. Mich. Nov. 17, 2016) (holding that a lesser rate
should be awarded for hours worked by non-attorneys);
Santino v. Astrue, No. 2:06-CV-75-PRC, 2009 WL
1076143, at *4 (N.D. Ind. Apr. 20, 2009) (considering the
reasonableness of a fee award by calculating the effective
rate both with and without non-attorney hours).
court need not answer the question of whether or how to
consider non-attorney hours to determine the reasonableness
of Mr. Wambach's fee request. Even if the court
disregards the 21.4 hours of non-attorney time reported by
Mr. Wambach, the effective rate of approximately $547.21 per
hour still falls within the range of what courts in this
district have deemed reasonable. See Hill v. Comm'r
of Soc. Sec., No. 1:11-CV-00134-SLC, 2016 WL 2643360, at
*4 (N.D. Ind. May 10, 2016) (granting a fee request equating
to an effective rate of $810); Bianco v. Colvin, No.
3:14CV98, 2016 WL 1295926, at *3 (N.D. Ind. Apr. 4, 2016)
(granting a fee request equating to an effective rate of
$825); Ittel v. Colvin, No. 2:12-CV-096 JD, 2014 WL
4905638, at *2 (N.D. Ind. Sept. 30, 2014) (granting a fee
request equating to an effective rate of $521);
Timberlake v. Colvin, No. 3:11-CV-10 RLM, 2014 WL
793366, at *1 (N.D. Ind. Feb. 26, 2014) (granting a fee
request equating to an effective rate of $696); Smith v.
Astrue, No. 1:05-CV-00202, 2009 WL 35223, at *3 (N.D.
Ind. Jan. 5, 2009) (granting a fee request equating to an
effective rate of $550). This fee is reasonable in light of
the result achieved in this case and the contingent nature of
Jarrett's application for social security disability
benefits was denied two separate times. After an
administrative hearing resulted in a third denial of Ms.
Jarrett's application, she retained Mr. Wambach as
counsel. Under the terms of their agreement, Ms. Jarrett
agreed that Mr. Wambach could elect to petition for up to 25
percent of all past due benefits in the event of a favorable
outcome. Following the court's previous decision to
remand to the agency, the court awarded Mr. Wambach fees in
the amount of $6, 154.50 pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412, $5, 571.20 of which Mr.
Wambach received. Fee awards may be made under both the EAJA
and Section 406(b), but the claimant's attorney must
refund the amount of the smaller fee. Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002). Mr. Wambach has
agreed that he will refund the EAJA award of $5, 571.20 he
received to Ms. Jarrett.
on the foregoing, the motion for authorization of attorney
fees pursuant to 42 U.S.C. § 406(b) [Doc. No. 40] is
GRANTED, and the court AWARDS fees to plaintiff's
attorney Joseph R. Wambach in the total amount of $11, 984.25
paid directly to Joseph R. Wambach of Keller and Keller, 2850
North Meridian Street, Indianapolis, Indiana 46208. The Court
further ORDERS Attorney Wambach to refund Ms. Jarrett the sum
of $5, 571.20, which represents the amount of EAJA fees
already paid to Mr. Wambach and now credited to Ms. Jarrett.
 Nancy A. Berryhill was automatically
substituted as the defendant in this case when she replaced
Carolyn W. Colvin as the Acting Commissioner of Social
Security pursuant to Federal ...