United States District Court, N.D. Indiana, Fort Wayne Division
EMMETT L. BENNETT, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Commissioner of Social Security,  Defendant.
OPINION AND ORDER
Collins United States Magistrate Judge.
Emmett L. Bennett brought this suit to contest a denial of
disability benefits by Defendant Commissioner of Social
Security (“Commissioner”). (DE 1). On September
17, 2015, this Court entered an Opinion and Order reversing
the Commissioner's denial of benefits and remanding the
case for further proceedings. (DE 32).
attorney, Joseph Shull, now moves pursuant to 42 U.S.C.
§ 406(b) for the Court's authorization of attorney
fees in the amount of $17, 587.50 for his representation of
Bennett in federal court. (DE 40). The Commissioner argues
that Shull did not timely file the motion under §
406(b), and therefore, the motion should be denied or the
award reduced. (DE 47). For the following reasons,
Shull's motion for attorney fees will be GRANTED.
Factual and Procedural Background
October 16, 2013, Shull entered into a contingent fee
agreement with Bennett for his representation of Bennett in
federal court, in which Bennett agreed to pay him 25 percent
of any past-due benefits awarded to Bennett. (DE 41-6).
November 15, 2013, Bennett filed the instant action with this
Court, appealing the Commissioner's denial of his
application for disability benefits. (DE 1). On September 17,
2015, Bennett received a favorable judgment from this Court,
and the case was remanded to the Commissioner for further
proceedings. (DE 32; DE 33).
November 25, 2015, Bennett filed a motion for attorney fees
under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412, seeking payment for the 27.65 hours of
work Shull spent advocating his claim in federal court. (DE
34-DE 35). On December 8, 2015, the Commissioner filed a
response, indicating that she had no objection to awarding
Bennett $5, 170.55 under the EAJA. (DE 37). The Court granted
Bennett's motion and awarded him an EAJA fee award of $5,
170.55. (DE 38). The government, however, seized the entire
EAJA award to satisfy a debt that Bennett owed to the
government. (DE 41 at 2; DE 41-1).
17, 2016, the Commissioner sent Bennett a notice of award,
informing him that he was entitled to monthly Supplemental
Security Income (“SSI”) payments beginning in
October 2010, and past-due SSI in the amount of $48, 694.03.
(DE 41-2). On December 5, 2016, the Commissioner sent Bennett
a notice of award, informing him that he was entitled to
monthly Disability Income Benefit (“DIB”)
payments beginning in April 2010, and past-due DIB in the
amount of $94, 350.00. (DE 41-3). The Commissioner also
notified Bennett that it was withholding $17, 587.50 (equal
to 25% of the past-due DIB) “in case [Shull] ask[ed]
the Federal Court to approve a fee for work that was done
before the court.” (DE 41-3 at 4). However, on May 1,
2017, the Commissioner sent Bennett a notice of change in
benefits, stating the Commissioner was reducing his past-due
DIB by $52, 359.03 because he had been receiving SSI payments
for some of the same months that he was entitled to DIB. (DE
2, 2017, Shull requested $6, 000.00 from the amount withheld
by the Commissioner, in payment for Shull's
representation of Bennett at the agency level. (DE 41 at 2;
August 10, 2018, Shull filed the instant motion, together
with supporting documentation, seeking the Court's
approval of a payment of $17, 587.50 for attorney fees before
this Court. (DE 40-DE 42). On September 6, 2018, the
Commissioner filed a response arguing that Shull's motion
under § 406(b) was not timely. (DE 47).
September 10, 2018, Bennett received a notice of award from
the Commissioner, informing him that three of his children
were entitled to past-due Social Security benefits and
attorney fees. (DE 50-2 through DE 50-5).
September 20, 2018, Shull filed his reply to the
Commissioner's response, arguing that his motion for fees
under § 406(b) was not late; in fact, it was premature
because it did not take into account Bennett's
children's past-due benefits. However, Shull does not
seek to recover any fees from Bennett's children's
past-due benefits. (DE 50 at 3).
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, 794.
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,  ...