United States District Court, N.D. Indiana, Fort Wayne Division
RONALD E. BALL, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Sued as Nancy A. Berryhill, Commissioner of Social Security,  Defendant.
OPINION AND ORDER
Collins United States Magistrate Judge
Ronald E. Ball brought this suit to contest a denial of
disability benefits by Defendant Commissioner of Social
Security (“Commissioner”). (DE 1). On February
28, 2014, 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 $23, 706.25 for his representation of
Ball in federal court. (DE 40). The Commissioner does not
oppose Ball's fee request. (DE 43). For the following
reasons, Shull's motion for attorney fees will be
GRANTED, subject to the offset and adjustment set forth
Factual and Procedural Background
September 18, 2012, Shull entered into a contingent fee
agreement with Ball for his representation of Ball in federal
court, in which Ball agreed to pay him 25 percent of any
past- due benefits awarded to Ball. (DE 41-3).
October 22, 2012, Ball filed the instant action with this
Court, appealing the Commissioner's denial of his
application for disability benefits. (DE 1). On February 28,
2014, Ball received a favorable judgment from this Court, and
the case was remanded to the Commissioner for further
proceedings. (DE 32; DE 33).
29, 2014, Ball filed a motion for attorney fees under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412, seeking payment for the 34.6 hours of work Shull
spent advocating his claim in federal court. (DE 35-DE 36).
On June 11, 2014, the Commissioner and Ball filed a joint
stipulation, agreeing that Ball was entitled to a fee award
of $6, 000 under the EAJA. (DE 37). The Court granted the
parties' stipulation and awarded Ball an EAJA fee award
of $6, 000. (DE 38).
February 1, 2017, the Commissioner sent a notice of award to
Ball, informing him that he was entitled to monthly
disability benefits beginning in December 2008, and past-due
benefits in the amount of $118, 825. (DE 41-2). Shull
requested and received $6, 000 from the amount withheld by
the Commissioner, in payment for Shull's representation
of Ball at the agency level. (DE 41 at 8-10; DE 41-5).
February 16, 2018, Shull filed the instant motion, together
with supporting documentation, seeking the Court's
approval of a payment of $23, 706.25 for attorney fees before
this Court. (DE 40-DE 42). On March 13, 2018, the
Commissioner filed a response indicating that she does not
object to Shull's request. (DE 43).
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 ...