United States District Court, N.D. Indiana, South Bend Division
OPINION AND ORDER
L. Miller, Jr., United States District Court Judge
Melnick brought this action for judicial review
after the Commissioner of Social Security denied her
application for disability insurance benefits. The court
vacated the Commissioner's decision and remanded the case
to the Social Security Administration for further
proceedings. Following remand, the Social Security
Administration determined that Ms. Melnick was disabled
awarded her $113, 683 in past-due benefits. The court awarded
counsel for the claimant, Jennifer L. Fisher, $7, 733.90 for
the services she provided pursuant to the Equal Access to
Justice Act, 28 U.S.C. § 2412(d). Ms. Fisher's
motion for authorization of attorney fees under 42 U.S.C.
§ 406(b) is now before the court.
attorney who has successfully represented a claimant in
federal court can receive “a reasonable fee for such
representation, not in excess of twenty-five percent of the
total past-due benefits to which the claimant is entitled by
reason of such judgment.” 42 U.S.C. §
406(b)(1)(A); Gisbrecht v. Barnhart, 535 U.S. 789,
792 (2002). While fees may be awarded under both the EAJA and
Section 406(b), “an EAJA award offsets an award under
Section 406(b).” Gisbrecht v. Barnhart, 535
U.S. at 796.
Fisher asks the court to authorize attorney fees in the
amount of twenty-five percent of Ms. Melnick's past-due
benefits, or $28, 420.75, less the $7, 733.90 the court
awarded her pursuant to the EAJA. This request is within both
the parameters of Section 406(b) and the parties'
contingent fee agreement. The government doesn't argue
Ms. Fisher's request is unreasonable but recognizes that
it is within the court's discretion to award the amount
requested or reduce the fee award.
court must decide whether the attorney fees yielded by the
parties' contingent fee agreement are reasonable.
Gisbrecht v. Barnhart, 535 U.S. at 807. A court
shouldn't override the attorney-client contingent-fee
agreement unless the resulting fee would be unreasonable.
Id. at 808. A fee may be unreasonable “[i]f
the attorney is responsible for delay” that causes an
“accumulation of benefits during the pendency of the
case in court” or the “the benefits are large in
comparison to the amount of time counsel spent on the
in the record suggests that Ms. Fisher caused any delay in
the adjudication of Ms. Melnick's case and the benefit of
her work was significant. Ms. Melnick's application for
social security disability benefits was denied by the agency
and denied again by an ALJ after an administrative hearing.
Ms. Fisher brought Ms. Melnick's appeal to this court,
the court remanded the case to the Social Security
Administration, which awarded her substantial past-due
the terms of their agreement, Ms. Melnick agreed that Ms.
Fisher could elect to petition for up to 25 percent of all
past due benefits in the event of a favorable
outcome. The amount requested, $28, 420.75 equates
to an effective rate of $555.09 per hour (for 51.2 hours).
The proposed fee award is within the bounds of the
contingency-fee agreement between Ms. Melnick and Ms. Fisher
and falls within the range of what courts in this district
have deemed reasonable. See, e.g., Hill v. Comm'r of
Soc. Sec., No. 1:11-CV-00134-SLC, 2016 WL 2643360, at *4
(N.D. Ind. May 10, 2016) (granting a fee request equating to
an effective rate of $810); Bianco v. Colvin, No.
3:14CV98, 2016 WL 1295926, at *3 (N.D. Ind. Apr. 4, 2016)
(granting a fee request equating to an effective rate of
$825); Ittel v. Colvin, No. 2:12-CV-096 JD, 2014 WL
4905638, at *2 (N.D. Ind. Sept. 30, 2014) (granting a fee
request equating to an effective rate of $521);
Timberlake v. Colvin, No. 3:11-CV-10 RLM, 2014 WL
793366, at *1 (N.D. Ind. Feb. 26, 2014) (granting a fee
request equating to an effective rate of $696); Smith v.
Astrue, No. 1:05-CV-00202, 2009 WL 35223, at *3 (N.D.
Ind. Jan. 5, 2009) (granting a fee request equating to an
effective rate of $550). The fee request is reasonable in
light of the result achieved in this case, Ms. Fisher's
experience, and the contingent nature of the recovery.
remand to the agency, the court awarded Ms. Fisher $7, 733.90
in fees pursuant to the Equal Access to Justice Act, 28
U.S.C. § 2412. Fee awards may be made under both the
EAJA and Section 406(b), but the claimant's attorney
“must refund . . . the amount of the smaller
fee.” Gisbrecht v. Barnhart, 535 U.S. at 796
(internal quotation marks omitted). Ms. Fisher acknowledges
that Ms. Melnick is entitled to a refund of the $7, 733.90
EAJA award Ms. Fisher received, so subtracts that from the
award she requests.
on the foregoing, the court GRANTS motion for attorney fees
pursuant to 42 U.S.C. § 406(b) [Doc. No. 35], and AWARDS
fees to plaintiff's attorney Jennifer L. Fisher in the
total amount of $20, 686.85 to be paid directly to Jennifer
L. Fisher of the Law Office of Jennifer L Fisher, P.O. Box
411, Marysville, KS 66508.
 Andrew Saul was automatically
substituted as the defendant in this case pursuant to Federal
Rule of Civil Procedure 25(d) when he became the Commissioner
of Social Security.
 Zachary Ball was substituted as the
plaintiff pursuant to Federal Rule of Civil Procedure
25(a)(1) after Karen Melnick ...