United States District Court, S.D. Indiana, Indianapolis Division
BRYAN D. HOBBS, Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations, Social Security Administration, Defendant.
ENTRY ON MOTION FOR AUTHORIZATION OF ATTORNEY FEES
PURSUANT TO 42 U.S.C. SECTION 406(b)
WALTON PRATT, JUDGE
matter is before the Court on Plaintiff Bryan D. Hobbs'
attorney, Joseph W. Shull's (“Shull”) Motion
for Authorization of Attorney Fees Pursuant to 42 U.S.C.
Section 406(b), which allows for attorneys' fees not in
excess of 25% of past due benefits under Title II of the
Social Security Act. (Filing No. 28.) Hobbs applied
for Disability Insurance Benefits and Supplemental Security
for his impairments of major depression, generalized anxiety,
chronic pain, asthma, and high blood pressure. (Filing
No. 14 at 2.) His application was denied initially, on
reconsideration, and again by an Administrative Law Judge.
The Appeals Council denied Hobbs' request for review.
Hobbs then requested judicial review of the Deputy
Commissioner's decision on July 31, 2015. (Filing No.
1). Upon review, this Court reversed the Deputy
Commissioner's decision and remanded the case to the
Administrative Law Judge for further proceedings, thereby
rendering Hobbs the prevailing party for purposes of the
Equal Access to Justice Act (the “EAJA”).
(Filing No. 20; Filing No. 22.)
Hobbs received payment of $8, 592.00 under the EAJA pursuant
to this Court's Order on September 22, 2016. (Filing
No. 27.) For the following reasons, Counsel's motion
is granted in part.
cases involving a claim for Social Security Disability
Insurance Benefits, 42 U.S.C. § 406(b) provides:
Whenever a court renders a judgment favorable to a claimant
… who was represented before the court by an attorney,
the court may determine and allow as part of its judgment 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 . . . .
Deputy Commissioner does not oppose counsel's request for
a fee of $12, 444.000.00 for 44.75 hours of work. (Filing
No. 31 at 2.) However, the Deputy Commissioner opposes
granting the entire award, without a fee reduction.
Id. at 5. Shull, delayed filing his motion for fees
under 42 U.S.C. § 406(b) by 263 days. (SeeFiling
No. 28.) Due to this 263-day delay, interest has accrued
on the EAJA refund at a rate of 2.08%. The Deputy
Commissioner recommends a reduction by an amount between
$85.00 and $324.00 to mitigate the prejudice to
Hobbs from his counsel's delay in receiving his EAJA fee
refund. Shull responds that it would not have been practical
to file the § 406(b) motion for attorney fees until
after the EAJA attorney fee motion was filed. (Filing No.
34 at 2.)
Court is charged with determining whether or not there is a
timeliness issue to Shull's fee request and whether that
warrants a reduction in fees. “It is entirely
appropriate for the commissioner or the court to raise, and
for the court to consider whether a § 406(b) fee
petition has been timely field.” Moore v.
Comm'r of Soc. Sec., No. 1:14-CV-00160-SLC, 2017 WL
3588066, at *3 (N.D. Ind. Aug. 21, 2017) (citing
Richardson v. Astrue, No. CIV. 07-62-P-H, 2010 WL
2927269, at *1 (D. Me. July 20, 2010)). “A petition for
fees under § 406(b)(1) must be brought within a
reasonable time.” Smith v. Bowen, 815 F.2d
1152, 1156 (7th Cir. 1987). The Deputy Commissioner cites
three cases where Shull received a fee reduction due
to his delay in filing. (Filing No. 31 at 3.) She
believes this evidences an established pattern of behavior
and it is prejudice towards Hobbs receiving his EAJA fee
refund. Id. at 5. The fees awarded under §
406(b) are charged against the claimant, not the government.
Gisbrecht v. Barnhart, 535 U.S. 789, 796, 122 S.Ct.
1817, 1820, 152 L.Ed.2d 996 (2002).
states that his delay in filing was due to the approval of
fees for Hobbs' representation by another attorney,
Kenneth Schuck (“Schuck”), at the administrative
level, which did not occur until February 12, 2018. Shull
then filed his § 406(b) fee motion on April 24, 2018.
(Filing No. 34 at 2.) The Court notes this was a
delay. On November 27, 2017, a notice was sent to Shull
requesting him to petition this Court for the attorney fees.
The notice discussed withholding $18, 444.00 from Hobbs'
award to pay for both Shull's and Schuck's services
“in anticipation of direct payment of an authorized
attorney's fee.” (Filing No. 31-2 at 2.)
Therefore, the Court will order that the attorney's fee
award be reduced to account for the prejudice that resulted
to Hobbs because of his attorney's delay. The Deputy
Commissioner will be directed to deduct from the portion due
to Shull, an amount equal to the interest on the $12, 444.00
owed to Hobbs' counsel, as calculated pursuant to the
statutory interest beginning on the 91st day after
the notice of award and ending on the date upon which
Shull's motion was filed, and add the $85.00 to the
amount owed to Hobbs. Shull, then, will receive the remainder
of his fee award.
foregoing reasons, the Court GRANTS in part
Shull's Motion for Authorization of Attorney Fees
Pursuant to 42 U.S.C. Section 406(b) (Filing No.
28). The Court awards attorney fees in the amount of
$12, 359.00, and the Deputy Commissioner shall direct the
award be made payable to Hobbs' counsel, Joseph W. Shull.
The Deputy Commissioner is further ORDERED
to deduct from Shull's award $85.00, an amount equal to
the interest owed to Hobbs, as calculated pursuant to the
statutory interest rate, beginning October 16, 2017 through
April 4, 2018.
 The Notice of Award was dated July 15,
2017, and was sent to Hobbs and Shull. (Filing No. ...