United States District Court, N.D. Indiana, Fort Wayne Division
RUTH A. HOOVER, Plaintiff,
ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.
OPINION AND ORDER
THERESA L. SPRINGMANN CHIEF JUDGE
matter is before the Court on the Plaintiff's
Attorney's Motion for an Award of Attorney Fees under 42
U.S.C. § 406(b) [ECF No. 31], filed on May 28, 2019. The
Motion requests an award of attorney fees in the amount of
$8, 520.00 pursuant to the Social Security Act, 42 U.S.C.
§ 406, for representation of the Plaintiff in federal
court. The Commissioner has no objection to the amount
requested. See Def.'s Resp., ECF No. 32. For the
reasons set forth below, the Court grants the motion and
awards $8, 520.00 in fees pursuant to 42 U.S.C. §
Plaintiff initiated this action for judicial review of the
Commissioner of Social Security's decision denying her
application for disability insurance benefits. On November
16, 2017, the Court granted the Plaintiff's request,
reversing and remanding for further proceedings. Under 42
U.S.C. § 2412, the Court awarded $2, 600.00 in EAJA fees
on February 15, 2018.
remand, an Administrative Law Judge (ALJ) found that the
Plaintiff has been disabled since November 2009 and issued a
Notice of Decision-Fully Favorable. Pl.'s Att'y's
Mot. for an Award of Att'y Fees Under 42 U.S.C. §
406(b), Ex. D, ECF No. 31-4. The ALJ also approved the fee
agreement between the Plaintiff and her representative at the
administrative level. Id. at 5.
14, 2019, the Social Security Administration issued a Notice
of Award, awarding the Plaintiff $117, 248.00 in past-due
Social Security benefits. Pl.'s Att'y's Mot. for
an Award of Att'y Fees Under 42 U.S.C. § 406(b), Ex.
E, p. 3, ECF No. 31-5. Twenty-five percent of the past-due
benefits is $29, 312.00, which the Social Security
Administration withheld for the payment of fees. Id.
at 3-4. The Social Security Administration paid the
Plaintiff's representative at the administrative level
$6, 000 under § 406(a) and indicated that the remainder
of $23, 312.00 was being held for any award of fees by this
Court under § 406(b). Id. at 4.
Social Security Act allows for a reasonable fee to be awarded
both for representation at the administrative level,
see 42 U.S.C. § 406(a), as well as
representation before the Court, see 42 U.S.C.
§ 406(b). See Culbertson v. Berryhill, 139
S.Ct. 517, 520 (2019) (quoting Gisbrecht v.
Barnhart, 535 U.S. 789, 794 (2002)). Under §
406(b), the Court may award a reasonable fee to the attorney
who has successfully represented the claimant in federal
court, not to exceed twenty-five percent of the past-due
benefits to which the social security claimant is entitled.
42 U.S.C. § 406(b)(1)(A); Gisbrecht, 535 U.S.
at 792. The twenty-five percent cap applies only to fees for
court representation and not to the aggregate fees awarded
under Sections 406(a) and 406(b). Culbertson, 139
S.Ct. at 523. However, an award of EAJA fees under 42 U.S.C.
§ 2412 offsets an award under § 406(b).
Gisbrecht, 535 U.S. at 796.
instant motion, counsel for the Plaintiff requests an award
of fees under § 406(b) for representation of the
Plaintiff in federal court in the amount of $8, 520.00, which
is in addition to the EAJA award of $2, 600.00, for a total
fee award of $11, 120.00. As noted above, the Social Security
Administration awarded the Plaintiff's representative at
the administrative level fees of $6, 000.00. Thus, the total
fees for representation at both levels is $17, 120.00.
Although the Supreme Court in Culbertson held that
“the statute does not impose a 25% cap on aggregate
fees” sought under § 406(a) and § 406(b),
Culbertson, 139 S.Ct. at 523, the fee agreement
entered into by counsel and the Plaintiff for representation
in federal court provides otherwise:
D. In a case in which the court awards both a fee
from my past-due benefits under 42 U.S.C. § 406(b)
and an EAJA fee, attorney will refund to me the
smaller of the two amounts or will otherwise ensure that the
EAJA fee award is deducted from any 42 U.S.C. § 406(b)
fee award. Any administrative fee that the Agency pays to
my hearing lawyer under 42 U.S.C. § 406(a) will also be
deducted from any § 406(b) award. Under no circumstances
will the total fees awarded for work under § 406(b) in
the U.S. District Court and/or in a higher U.S. Court exceed
twenty-five percent (25%) of any past-due benefits awarded to
me and my family by the Social Security Administration.
Att'y's Mot. for an Award of Att'y Fees Under 42
U.S.C. § 406(b), Ex. A, § 2.D, ECF No. 31-1
(italicized emphasis added). Because the total fees of $17,
120.00 do not exceed $29, 312.00 (twenty-five percent of the
Plaintiff's past-due benefits), the requested fees are
consistent with the fee agreement.
the Court must also review the fee request to ensure that it
is reasonable. Gibrecht, 535 U.S. at 807. The
reasonableness analysis considers the “character of the
representation and the results the representative
achieved.” Id. at 808. Reasons to reduce an
award may be delay by the attorney or if the past-due benefit
are large in comparison to the amount of time counsel spent
on the case. Id. Plaintiff's counsel worked 13.9
hours in this litigation to obtain a reversal and remand for
further proceedings. The effective hourly rate of EAJA and
§ 406(b) fees combined would be $800.00, which is well
within the range of reasonableness given the Plaintiff's
attorney's years of experience, the contingent nature of
this representation, and the fees that have been approved in
similar cases in this District. See, e.g., Hill
v. Comm'r of Soc. Sec., No. 1:11-CV-134, 2016 WL
2653360, at *4 (N.D. Ind. May 10, 2016) (effective rate of
$810 per ...