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Parker v. Saul

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

July 22, 2019

WENDELL D. PARKER, Plaintiff,
v.
ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.

          OPINION AND ORDER

          THERESA L. SPRINGMANN CHIEF JUDGE

         This 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. 24], filed on May 20, 2019. The Motion requests an award of attorney fees in the amount of $12, 215.00 pursuant to the Social Security Act, 42 U.S.C. § 406(b), for representation of the Plaintiff in federal court. The Commissioner has no objection to the amount requested. See Def.'s Resp., ECF No. 25. For the reasons set forth below, the Court denies the motion without prejudice with leave to refile once the Social Security Administration has resolved the issue of fees under 42 U.S.C. § 406(a).

         BACKGROUND

         The Plaintiff initiated this action for judicial review of the Commissioner of Social Security's decision denying his application for disability insurance benefits. On September 14, 2017, the Court granted the Plaintiff's request, reversing and remanding for further proceedings. Under 42 U.S.C. § 2412, the Court awarded $3, 705.00 in EAJA fees on December 18, 2017.

         On remand, an Administrative Law Judge (ALJ) found that the Plaintiff has been disabled since February 2012 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. 24-4. The same date, the ALJ also issued an Order disapproving of the fee agreement between the Plaintiff and his representative at the administrative level, triggering a fee petition process for § 406(a) fees. Id. at 4.

         On April 10, 2019, the Social Security Administration issued a Notice of Award, awarding the Plaintiff $139, 883.50 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. 24-5. Twenty-five percent of the past-due benefits is $34, 970.88. Id. This amount was withheld by the Social Security Administration for the payment of fees. Id. The Notice of Award also provides the procedure by which the representative at the administrative level can seek fees. Id.

         LEGAL STANDARD

         The 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.

         ANALYSIS

         In the 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 $12, 215.00, which is in addition to the EAJA award of $3, 705.00, for a total fee award of $15, 920.00. Counsel correctly notes that the requested total amount of $15, 920.00 does not exceed twenty-five percent of past-due benefits ($34, 970.88) in conformity with § 406(b) and the fee agreement between the Plaintiff and counsel for representation in federal court.

         Counsel for the Plaintiff also informs the Court that, at the time of filing the instant motion, the Social Security Administration had still not resolved the issue of § 406(a) fees that may be payable to the Plaintiff's hearing representative/attorney. In light of the Supreme Court's recent holding in Culbertson “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, there is no statutory requirement that this Court await a determination of a § 406(a) fee award by the Social Security Administration before this Court determines a reasonable fee under § 406(b).

         However, 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.

Pl.'s Att'y's Mot. for an Award of Att'y Fees Under 42 U.S.C. § 406(b), Ex. A, § 2.D, ECF No. 24-1 (italicized emphasis added). In Culbertson, there is no suggestion that the fee agreement contained similar language; rather, the opinion indicates that contingency-fee agreement was for representation in “Federal Court” and that “the agreement ...


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