United States District Court, S.D. Indiana, Indianapolis Division
ORDER ON MOTION FOR ATTORNEY FEES
J. DINSMORE JUDGE.
matter is before the Court on Plaintiff Belinda Taylor's
Motion for an Award of Attorney Fees Under 42 U.S.C.
§ 406(b) [Dkt. 36]. For the reasons that follow,
the Court GRANTS Plaintiff's Motion.
December 22, 2016, Plaintiff filed a complaint seeking to
reverse the decision of the Commissioner of Social Security
denying her application for Social Security benefits.
[Dkt. 1.] On August 15, 2017, the parties filed a
Joint Motion to Remand [Dkt. 29], which the Court
granted [Dkt. 30]. Judgment was entered in favor of
Plaintiff on August 17, 2017. [Dkt. 31.] Plaintiff
received an award of attorney fees under the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. §
2412(d)(1)(A), in the amount of $2, 435.00. [Dkt.
second administrative hearing was held, and the
Administrative Law Judge (“ALJ”) issued a
favorable decision. [Dkt. 36-4.] On August 21, 2018,
Plaintiff's counsel filed a motion for reasonable
attorney fees pursuant to Section 406(b) of the Social
Security Act, and submitted therewith a copy of the fee
agreement providing for twenty-five percent of the past-due
benefits resulting from the claim. [Dkt. 36.] The
Commissioner does not object to Plaintiff's Motion.
[Dkt. 37.] This Motion is now before the Court.
406(b) of the Social Security Act provides that a district
court may grant “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” as part of a judgment in favor of the
claimant in a disability benefit appeal. 42 U.S.C. §
406(b)(1)(A). In addition to the allowance of fees pursuant
to § 406(b), the EAJA mandates that a court award
attorney's fees and other expenses to the prevailing
party in civil actions against the United States (such as
disability benefit appeals to the federal court).
See 28 U.S.C. § 2412(d)(1)(A). When a
prevailing claimant's attorney qualifies for 406(b) fees
but has already received a fee award pursuant to the EAJA,
“such award offsets the allowable fee under §
406(b).” Koester v. Astrue, 482 F.Supp.2d
1078, 1080 (E.D. Wis. 2007); see also Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002); Astrue v.
Ratliff, 560 U.S. 586, 595-96 (2010). Even where an
attorney's 406(b) motion for fees is not opposed, the
Court must review the outcome of any contingent fee
arrangements “as an independent check, to assure that
they yield reasonable results in particular cases.”
Gisbrecht, 535 U.S. at 807.
counsel seeks an award of attorney fees in the amount of $11,
688.00, which is exactly 25 percent of the total past-due
benefits awarded to Plaintiff. [Dkt. 36-2 at 4.] The
Supreme Court in Gisbrecht found that § 406(b)
was designed “to control, not to displace, fee
agreements between Social Security benefits claimants and
their counsel.” 535 U.S. at 793. Those controls include
the following parameters: (1) attorney fees may only be
obtained if the claimant is awarded back benefits; (2)
attorney fees are awarded from, not in addition to, those
back benefits; and (3) attorney fees cannot exceed 25 percent
of the back benefits. Id. at 795. Here, Plaintiff
was awarded back benefits, so an award of § 406(b)
attorney fees is appropriate. [Dkt. 36-5.]
25 percent of the award of past-due benefits is not
presumptively reasonable “[i]f the benefits are large
in comparison to the amount of time counsel spent on the
case.” Gisbrecht, 535 U.S. at 808. Within the
Seventh Circuit, fee awards equivalent to hourly rates
ranging from $400 to $600 are consistently found to be
reasonable. See, e.g., Zimmerman v. Astrue,
No. 1:08-cv-00228, 2011 WL 5980086, at *3 (N.D. Ind. Nov. 29,
2011) (approving an award equivalent to an hourly rate of
$410); Duke v. Astrue, No. 1:07-cv-00118, 2010 WL
3522572, at *3-4 (N.D. Ind. Aug. 30, 2010) (approving award
equivalent to an hourly rate of $549.14); Schimpf v.
Astrue, No. 1:06-cv-00018, 2008 WL 4614658, at *3 (N.D.
Ind. Oct. 16, 2008) (approving award equivalent to an hourly
rate of $583.50). Plaintiff's counsel states that his law
firm billed a total of 31 hours on this case. Thus, dividing
$11, 688.00 (i.e., the award counsel has requested under
406(b)) by the 31 hours spent on the case, Plaintiff's
counsel's hourly rate comes to $377.03, which is below
the generally accepted range in the Seventh
Plaintiff also received an award of $2, 435 in EAJA awarded
fees. Generally, such an award offsets Plaintiffs requested
406(b) award. Koester, 482 F.Supp.2d at 1080.
Plaintiffs counsel promises to refund the extra $2, 435 back
to Plaintiff after the Court has awarded his current request.
[Dkt. 36-2 at 6.] However, the Court has found it
more efficient to offset the EAJA award from the requested
counsel's fees. See Cale v. Colvin, No.
1:12-cv-01527-MJD-RLY, Dkt. 30 at 3 (S.D. Ind. Sept. 24,
2015). Thus, to prevent exceeding the 25 percent maximum fee,
the Court offsets the $2, 435 EAJA award by subtracting it
from the requested $11, 688 amount. This reduces Plaintiffs
counsel's fee request to $9, 253.
aforementioned reasons, the Court GRANTS
Plaintiff s Motion for an Award of Attorney Fees Under 42
U.S.C. § 406(b) [Dkt. 36] in the amount of ...