United States District Court, N.D. Indiana, Fort Wayne Division
OPINION AND ORDER
Collins United States Magistrate Judge
Doreen Frances Perkins brought this suit to contest a denial
of disability benefits by Defendant Commissioner of Social
Security (“Commissioner”). (ECF 1). On September
28, 2018, this Court entered an Opinion and Order that
reversed the Commissioner's denial of benefits and
remanded the case for further proceedings. (ECF 20).
counsel now moves pursuant to 42 U.S.C. § 406(b) for the
Court's authorization of attorney fees in the amount of
$23, 895 for their representation of Perkins in federal
court. (ECF 26). The Commissioner filed a
response indicating that he does not object to the amount
sought in the motion (ECF 27); therefore, the motion is ripe
for ruling. For the following reasons, the motion for
attorney fees will be GRANTED.
Factual and Procedural Background
24, 2016, Counsel entered into a U.S. District Court Retainer
Agreement and Assignment (the “Retainer
Agreement”) with Perkins for their representation of
Perkins in federal court. (ECF 26-3). The Retainer Agreement
provides that Counsel will receive twenty-five percent of any
past due benefits awarded to Perkins and her family in the
event her disability appeal is successful. (ECF 26-3 ¶
11, 2016, Perkins filed the instant action in this Court,
appealing the Commissioner's denial of her application
for disability benefits. (ECF 1). On September 28, 2018, this
Court entered an Opinion and Order reversing the
Commissioner's final decision and remanding the case to
the Commissioner for further proceedings. (ECF 20).
November 29, 2018, the Commissioner filed a stipulation to an
award of attorney fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, in the amount of
$5, 432.86, plus $400 in costs, for the twenty-nine hours
that Counsel spent advocating Perkins's claim in federal
court. (ECF 22, 22-1). The Court then granted the stipulated
motion, ordering the Commissioner to pay the requested EAJA
fee award to Perkins. (ECF 23).
27, 2019, the Commissioner sent a notice of award to Perkins,
explaining that she was entitled to monthly disability
benefits beginning April 2013 and past-due benefits in the
amount of $95, 580. (ECF 26-3 at 7, 9). The following month
Counsel filed the instant motion, together with affidavits, a
memorandum, and exhibits, seeking fees under § 406(b) in
the amount of $23, 895 for the twenty-nine hours Counsel
spent advocating Perkins's appeal in federal court. (ECF
26-2 to 26-4; ECF 32). Counsel states that upon receipt of
the § 406(b) award, they will remit $5, 432.86, the
previously awarded EAJA fees, to Perkins. (ECF 32 ¶ 18).
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. Id. 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 795.
§ 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 twenty-five 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, as an
EAJA award “offsets” an award under §
406(b). Id. at 797.
the award by the Commissioner under § 406(a), the court
is required under § 406(b) to review for reasonableness
the attorney fees yielded by contingent fee ...