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Bennett v. Commissioner of Social Security

United States District Court, N.D. Indiana, Fort Wayne Division

November 9, 2018

EMMETT L. BENNETT, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, sued as Nancy A. Berryhill, Commissioner of Social Security, [1] Defendant.

          OPINION AND ORDER

          Susan Collins United States Magistrate Judge.

         Plaintiff 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).

         Bennett's 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.

         A. Factual and Procedural Background

         On 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.[2] (DE 41-6).

         On 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).

         On 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).

         On July 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 41-4).

         On May 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; DE 41-5).

         On 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).

         On 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).

         On 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).

         B. Legal Standard

         Fees 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, [3] ...


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