United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr. Judge, United States District Court
B Tidwell, Jr. brought this action for judicial review after
the Commissioner of Social Security denied his application
for disability insurance benefits. The court affirmed the
Commissioner's decision and, while the case was pending
on appeal, the Commissioner requested remand for further
administrative proceedings, at which Mr. Tidwell prevailed
and was awarded $74, 244 in past-due benefits. Mr. Tidwell
has an eligible auxiliary who was also awarded benefits. The
court awarded Mr. Tidwell's counsel, Barry A. Schultz,
$2, 751.56 for the services he provided pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412(d). Mr.
Schultz's motion for authorization of attorney fees under
42 U.S.C. § 406(b) is now before the court.
attorney who has successfully represented a claimant in
federal court may receive “a reasonable fee for such
representation, not in excess of twenty-five percent of the
total past-due benefits to which the claimant is entitled by
reason of such judgment.” 42 U.S.C. §
406(b)(1)(A); Gisbrecht v. Barnhart, 535 U.S. 789,
792 (2002). While fees may be awarded under both the EAJA and
Section 406(b), “an EAJA award offsets an award under
Section 406(b).” Gisbrecht v. Barnhart, 535
U.S. at 796.
Schultz asks the court to authorize attorney fees in the
amount of $16, 828.50, which represents twenty-five percent
of Mr. Tidwell's and his auxiliary's past-due
benefits, less the $6, 000 he has requested in administrative
fees for work performed before the agency. This request is
within both the parameters of Section 406(b) and the
parties' contingent fee agreement. The government
doesn't objected to Mr. Schultz's request.
court must now decide whether the attorney fees yielded by
that agreement are reasonable. Gisbrecht v.
Barnhart, 535 U.S. at 807. A court shouldn't
override the attorney-client contingent-fee agreement unless
the resulting fee would be unreasonable. Id. at 808.
A fee may be unreasonable “[i]f the attorney is
responsible for delay” that causes an
“accumulation of benefits during the pendency of the
case in court” or the “the benefits are large in
comparison to the amount of time counsel spent on the
in the record suggests that Mr. Schultz caused any delay in
the adjudication of Mr. Tidwell's case and while Mr.
Schultz and his firm only spent 11.3 hours of work on the
case, that is evidence of his effectiveness, rather than an
indicia of unreasonableness. Mr. Tidwell's application
for social security disability benefits was denied by the
agency and denied again by an ALJ after an administrative
hearing. After this court affirmed the ALJ's decision,
Mr. Tidwell appealed this court's decision and retained
Mr. Schultz as counsel. While the appeal was pending and
before any briefing was filed in the court of appeals, Mr.
Schultz engaged in settlement discussions with counsel for
the Commissioner and the Commissioner agreed to request
remand to the agency, where Mr. Tidwell and his auxiliary
were awarded substantial past-due benefits.
the terms of their agreement, Mr. Tidwell agreed that Mr.
Schultz could elect to petition for up to 25 percent of all
past due benefits in the event of a favorable outcome. The
proposed fee award is within the bounds of the
contingency-fee agreement between Mr. Tidwell and Mr. Schultz
and within the range found reasonable by other courts.
See, e.g., Quinnin v. Colvin, No. 1:12-CV-01133-SI,
2013 WL 5786988 (D. Or. Oct. 28, 2013) (awarding an attorney
fee of $10, 050 for 1.5 hours of attorney time and 13.2 hours
of paralegal time spent on the case); Kazanjian v.
Astrue, No. 09 CIV. 3678 BMC, 2011 WL 2847439 (E.D.N.Y.
July 15, 2011) (awarding an attorney fee award of $48, 064
for 19.75 hours of work on the case); Claypool v.
Barnhart, 294 F.Supp.2d 829 (S.D. W.Va. 2003) (awarding
an attorney fee award of $18, 000 for 12.56 hours of attorney
remand to the agency, the court awarded Mr. Schultz fees in
the amount of $2, 751.56 pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412. Fee awards may be made
under both the EAJA and Section 406(b), but the
claimant's attorney must refund the amount of the smaller
fee. Gisbrecht v. Barnhart, 535 U.S. at 789. Mr.
Schultz acknowledges that Mr. Tidwell is entitled to a refund
of the $2, 751.56 EAJA award Mr. Schultz received.
on the foregoing, the motion for attorney fees pursuant to 42
U.S.C. § 406(b) [Doc. No. 49] is GRANTED, and the court
AWARDS fees to plaintiff's attorney Barry A. Schultz in
the total amount of $16, 828.50 paid directly to Barry A.
Schultz of Law Offices of Barry A Schultz PC, 1601 Sherman
Ave, Ste 500, Evanston, IL 60201. The Court further ORDERS
Attorney Schultz to refund Mr. Tidwell the sum of $2, 751.56,
which represents the amount of EAJA fees already paid to Mr.
Schultz and now credited to Mr. Tidwell.
 Nancy A. Berryhill was automatically
substituted as the defendant in this case when she replaced
Carolyn W. Colvin as the Acting Commissioner of Social
Security pursuant to Federal ...