United States District Court, N.D. Indiana, Fort Wayne Division
KURT A. WELLS, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Acting Commissioner of SSA,  Defendant.
OPINION AND ORDER
Collins, United States Magistrate Judge.
Kurt A. Wells brought this suit to contest a denial of
disability benefits by Defendant Commissioner of Social
Security (“Commissioner”). (DE 1). On March 28,
2017, this Court entered an Opinion and Order that reversed
the Commissioner's denial of benefits and remanded the
case for further proceedings. (DE 29).
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 $18, 505.25 for his representation of
Wells in federal court. (DE 37). The Commissioner filed a
response indicating that she does not oppose the motion (DE
40), and thus, the motion is ripe for ruling. For the
following reasons, Shull's motion for attorney fees will
be GRANTED, subject to an offset explained herein that will
reduce his fee to $12, 305.25.
Factual and Procedural Background
January 21, 2016, Shull entered into a contingent fee
agreement with Wells for his representation of Wells in
federal court. (DE 38-2). The agreement provided that
Shull would “charge and receive as his fee an amount
equal to twenty-five percent (25%) of the past-due benefits
which are awarded to [Wells's] family and [him] in the
event [his] case is won.” (DE 38-2).
same day, Wells filed the instant action with this Court,
appealing the Commissioner's denial of his application
for disability benefits. (DE 1). On March 28, 2017, Wells
received a favorable judgment from this Court, and the case
was remanded to the Commissioner for further proceedings. (DE
29; DE 30).
20, 2017, Wells filed a request for attorney fees under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412, seeking payment for the hours that Shull spent
advocating his claim in federal court. (DE 32-DE 34).
Pursuant to the parties' subsequent stipulation, the
Court granted Wells an EAJA fee award of $6, 200. (DE 35; DE
February 12, 2018, the Commissioner sent a notice of award to
Wells, explaining that he was entitled to monthly disability
benefits beginning October 2012 and past-due benefits in the
amount of $98, 021. (DE 38-1 at 6). The notice further
explained that the Commissioner had withheld 25 percent of
Wells's past-due benefits, that is, $24, 505.25, to pay
Wells's attorney and that any remainder after doing so
would be sent to Wells. (DE 38-1 at 7).
three months, that is, on May 3, 2018, Shull filed the
instant motion seeking fees under § 406(b) in the amount
of $18, 505.25 for the 32.6 hours he spent advocating
Wells's appeal in federal court. (DE 37).
for representing Social Security claimants, both
administratively and in federal court, are governed by 42
U.S.C. § 406. Gisbrecht, 535 U.S. at 793-94.
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 that the attorney received.
Gisbrecht, 535 U.S. at 796 (explaining that
“an EAJA award offsets an award under Section
the award by the Commissioner under § 406(a), the court
is required under § 406(b) to review for reasonableness
the attorney fees yielded by contingent fee ...