United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge
Rosemarie Hughes brought this suit to contest a denial of
disability benefits by Defendant Commissioner of Social
Security (“Commissioner”). (DE 1). On March 29,
2018, this Court entered an Opinion and Order that reversed
the Commissioner's denial of benefits and remanded the
case for further proceedings. (DE 19).
attorney, Adriana de la Torre (“Attorney de la
Torre”), now moves pursuant to 42 U.S.C. § 406(b)
for the Court's authorization of attorney fees in the
amount of $16, 765.63 for her representation of Hughes in
federal court. (DE 26; DE 27). For the following reasons,
Attorney de la Torre's motion for attorney fees will be
GRANTED, subject to an offset explained herein that will
reduce her fee award to $8, 498.41.
2018, Attorney de la Torre, on behalf of Hughes, moved for an
extension of time to file a motion for attorney's fees
under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412. (DE 21). Attorney de la Torre attached
a proposed EAJA petition to the motion in which she requested
a total award of $8, 267.22 ($7, 847 in fees and $420.22 in
costs). (DE 21-1 at 2). The Court ultimately denied the
motion for an extension of time, and Attorney de la Torre did
not recover any EAJA fees. (DE 25).
March 4, 2019, the Commissioner sent Hughes a “Notice
of Award, ” indicating that she was found disabled and
entitled to past-due benefits in the amount of $91, 062.50.
(DE 26-1). On March 7, 2019, Attorney de la Torre filed a
motion pursuant to 42 U.S.C. § 406(b), together with
supporting documentation, for the Court's authorization
of attorney fees in the amount of $16, 765.63 for her
representation of Hughes in federal court. (DE 26).
Commissioner filed a response indicating that Attorney de la
Torre is entitled to fees under § 406(b), but that the
award should be offset by $8, 267.22 (the amount that
Attorney de la Torre requested in her proposed EAJA
petition). (DE 28). The Commissioner contends that if
Attorney de la Torre had timely filed a petition for EAJA
fees, then she would have recovered those fees from the
Social Security Administration. However, because Attorney de
la Torre's attempt to file an EAJA petition was
unsuccessful, she now seeks the $8, 267.22 in a § 406(b)
award, which is paid out of Hughes's past-due benefits.
Therefore, the Commissioner argues, an offset of $8, 267.22
is necessary to prevent an award under § 406(b) from
for representing Social Security claimants, both
administratively and in federal court, are governed by 42
U.S.C. § 406. Gisbrecht v. Barnhart, 535 U.S.
789, 793-94 (2002). 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,
fees awarded under § 406 are charged against the
claimant, not the government. Id. at 796.
§ 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. This 25 percent cap
applies only to fees for court representation and not to the
aggregate fees awarded under sections 406(a) and (b).
Culbertson v. Berryhill, 139 S.Ct. 517, 523 (2018).
Court is required under § 406(b) to review for
reasonableness the attorney fees yielded by contingent fee
agreements. Gisbrecht, 535 U.S. at 809. The Supreme
Court has explained:
Congress has provided one boundary line: Agreements are
unenforceable to the extent that they provide for fees
exceeding 25 percent of the past-due benefits. Within the 25
percent boundary, . . . the attorney for the successful
claimant must show that the fee sought is reasonable for the
services rendered. Courts that approach fee determinations by
looking first to the contingent-fee agreement, then testing
it for reasonableness, have appropriately reduced the