United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins, United States Magistrate Judge.
Lonnie McGraw, Jr., brought this suit to contest a denial of
disability benefits by Defendant Commissioner of Social
Security (“Commissioner”). (DE 1). On February
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 21).
attorney, Adriana 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 $9, 033.50 for her
representation of McGraw in federal court. (DE 28). The
Commissioner filed a response indicating that she does not
oppose the motion (DE 31), and thus, the motion is ripe for
ruling. For the following reasons, de la Torre's motion
for attorney fees will be GRANTED, subject to an offset
explained herein that will reduce her fee to $2, 754.50.
Factual and Procedural Background
March 15, 2016, de la Torre entered into a contingent fee
agreement with McGraw for her representation of McGraw in
federal court. (DE 28-2). The agreement provided that de
la Torre was “entitled to a fee equal to the lesser of:
(1) twenty-five percent (25%) of the past-due benefits owed
to [McGraw] and [his] dependents, if applicable; or (2) the
maximum amount set by the [Commissioner] pursuant to Section
26 of the Social Security Act . . . .” (DE 28-2).
March 25, 2016, McGraw filed the instant action with this
Court, appealing the Commissioner's denial of his
application for disability benefits. (DE 1). On February 27,
2017, the Commissioner filed an agreed motion to reverse and
remand McGraw's case to the Commissioner. (DE 20). On
February 28, 2017, the Court granted the Commissioner's
motion, and the case was remanded to the Commissioner for
further proceedings. (DE 21; DE 22).
March 29, 2017, McGraw and the Commissioner filed a joint
motion for attorney fees under the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412, seeking
payment for the hours that de la Torre spent advocating
McGraw's claim in federal court. (DE 23). Pursuant to the
parties' subsequent stipulation, the Court granted McGraw
an EAJA fee award of $6, 279. (DE 24-DE 26).
September 11, 2018, the Commissioner sent an “Important
Information” notice explaining that the Commissioner
had withheld 25% of McGraw's past-due benefits, that is,
$9, 033.50, to pay McGraw's attorney. (DE 28-1). Less
than a month later, that is, October 3, 2018, de la Torre
filed the instant motion seeking fees under § 406(b) in
the amount of $9, 033.50 for the 34.5 hours she spent
advocating McGraw's appeal in federal court. (DE 28; DE
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 agreements.
Id. 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