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Green v. Commissioner of Social Security

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

May 8, 2018

COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Acting Commissioner of SSA, [1] Defendant.


          Susan Collins United States Magistrate Judge

         Plaintiff Charlene Green brought this suit to contest a denial of disability benefits by Defendant Commissioner of Social Security (“Commissioner”). (DE 1). On April 4, 2016, pursuant to Defendant's Agreed Motion for Reversal With Remand for Further Administrative Proceedings (DE 23), this Court entered an Order reversing the Commissioner's denial of benefits and remanding the case for further proceedings (DE 24).

         Green'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 $8, 333.50 for his representation of Green in federal court. (DE 33). The Commissioner does not oppose Green's fee request. (DE 36). For the following reasons, Shull's motion for attorney fees will be GRANTED.

         A. Factual and Procedural Background

         On July 2, 2015, Shull entered into a contingent fee agreement with Green for his representation of her in federal court, in which Green agreed to pay him 25 percent of any past- due benefits awarded to her.[2] (DE 34-4).

         On July 2, 2015, Green filed the instant action with this Court, appealing the Commissioner's denial of her application for disability benefits. (DE 1). On April 4, 2016, Green received a favorable judgment from this Court, and the case was remanded to the Commissioner for further proceedings. (DE 24; DE 25).

         On April 22, 2016, Green filed a motion for attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, seeking payment for the 32 hours of work Shull spent advocating her claim in federal court. (DE 26-DE 29). The Court granted Green's motion and awarded her an EAJA fee award of $6, 144. (DE 31). The entire amount, however, was paid to the Government to offset an outstanding debt that Green owed to the Government. (DE 34-1).

         On October 30, 2017, the Commissioner sent a notice of award to Green, informing her that she was entitled to monthly disability benefits beginning November 2011 and past-due benefits in the amount of $57, 334, of which $14, 333.50 was withheld toward payment of attorney fees. (DE 34-2). Shull requested and received $6, 000 (less a service fee) from the amount withheld by the Commissioner, in payment for Shull's representation of Green at the agency level. (DE 34 at 2; DE 34-3).

         On March 10, 2018, the Commissioner sent Shull a letter informing him that she was still withholding $8, 333.50 (the balance of the $14, 333.40 originally withheld) in anticipation of his request for attorney fees, and inquiring whether he had petitioned the Court for a fee for his services before the Court. (DE 34-3).

         On April 4, 2018, Shull filed the instant motion, together with supporting documentation, seeking the Court's approval of a payment of $8, 333.50 for attorney fees before this Court. (DE 33-DE 35). On April 17, 2018, the Commissioner filed a response indicating that she does not object to Shull's request. (DE 36).

         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, [3] 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 . . . .”[4] 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 ...

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