United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge
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).
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.
Factual and Procedural Background
11, 2015, Trzynka entered into a contingent fee agreement
with Lombardo for her representation of Lombardo in federal
court. (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
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;
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;
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).
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).
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. 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).
§ 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.