United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge
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).
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
Factual and Procedural Background
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. (DE 34-4).
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).
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).
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).
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).
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).
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 ...