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Lombardo v. Commissioner of Social Security

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

March 25, 2019

SABRINA LOMBARDO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Acting Commissioner of SSA, Defendant.

          OPINION AND ORDER

          Susan Collins United States Magistrate Judge

         Plaintiff Sabrina Lombardo brought this suit to contest a denial of disability benefits by Defendant Commissioner of Social Security (“Commissioner”). (DE 1). On February 3, 2016, pursuant to a stipulation by the parties, this Court entered an Order that reversed the Commissioner's denial of benefits and remanded the case for further proceedings. (DE 19-DE 21).

         Lombardo's attorney, Ann Trzynka, now moves pursuant to 42 U.S.C. § 406(b) for the Court's authorization of attorney fees in the amount of $7, 266 for her representation of Lombardo in federal court. (DE 26). The Commissioner has not filed a response to the motion, and her time to do so has now passed. N.D. Ind. L.R. 7-1(d)(2)(A). Therefore, the motion is ripe for ruling. For the following reasons, Trzynka's motion for attorney fees will be GRANTED, subject to an offset explained herein that will reduce her fee to $1, 266.

         A. Factual and Procedural Background

         On June 11, 2015, Trzynka entered into a contingent fee agreement with Lombardo for her representation of Lombardo in federal court.[1] (DE 26-5). The agreement provided that Tryznka would “charge and receive as the fee an amount equal to twenty-five percent (25%) of the past-due benefits that are awarded to [Lombardo's] family and [Lombardo] in the event [her] case is won.” (DE 26-5 (emphasis omitted)).

         On June 15, 2015, Lombardo filed the instant action with this Court, appealing the Commissioner's denial of her application for disability benefits. (DE 1). On February 2, 2016, the Commissioner filed an agreed motion for reversal, reporting that the parties had stipulated to a remand of the case for further administrative proceedings. (DE 19). The next day, the Court entered an Order reversing the Commissioner's decision and remanding the case to the Commissioner. (DE 20; DE 21).

         On March 4, 2016, Lombardo filed a request for attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, seeking payment for the 33.3 hours that Trzynka spent advocating her claim in federal court. (DE 22). Pursuant to the parties' subsequent stipulation, the Court granted Lombardo an EAJA fee award of $6, 000. (DE 23; DE 24).

         On September 11, 2018, the Commissioner sent a notice of award to Lombardo, explaining that Lombardo was entitled to monthly disability benefits beginning March 2013 and past-due benefits in the amount of $29, 064. (DE 26-4 at 3). The notice further explained that the Commissioner had withheld 25% of Lombardo's past-due benefits, that is, $7, 266, to pay Lombardo's attorney and that any remainder after doing so would be sent to Lombardo. (DE 26-4 at 3).

         Within five months, that is, on February 19, 2019, Trzynka filed the instant motion seeking fees under § 406(b) in the amount of $7, 266 for the 33.3 hours she spent advocating Lombardo's appeal in federal court. (DE 26).

         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 793-94. 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, [2] the fees awarded under § 406 are charged against the claimant, not the government. Id. at 796.

         Under § 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.

         Under § 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 . . . .”[3] 42 U.S.C. § 406(b)(1)(A); Gisbrecht, 535 U.S. at 795. This 25 percent cap applies only to fees for court representation and not to the aggregate fees awarded under §§ 406(a) and (b). Culbertson v. Berryhill, 139 S.Ct. 517, 523 (2018).

         Section § 406(b) has been harmonized with the EAJA. Gisbrecht, 535 U.S. at 796. 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. Id. ...


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