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Ball v. Commissioner of Social Security

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

May 24, 2018

RONALD E. BALL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Sued as Nancy A. Berryhill, Commissioner of Social Security, [1] Defendant.

          OPINION AND ORDER

          Susan Collins United States Magistrate Judge

         Plaintiff 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).

         Ball'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 $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 herein.

         A. Factual and Procedural Background

         On 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.[2] (DE 41-3).

         On 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).

         On May 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).

         On 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).

         On 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).

         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 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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