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Perkins v. Commissioner of Social Security

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

October 16, 2019

DOREEN FRANCES PERKINS, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, sued as Andrew Saul, Commissioner of Social Security, [1] Defendant.

          OPINION AND ORDER

          Susan Collins United States Magistrate Judge

         Plaintiff 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).

         Perkins's 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.[2] (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.

         A. Factual and Procedural Background

         On June 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.[3] (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 ¶ 2).

         On July 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).

         On 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).

         On July 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).

         B. Legal Standard

         Fees 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, [4] the fees awarded under § 406 are charged against the claimant, not the government. Id. at 796.

         Under § 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.

         Under § 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 . . . .”[5] 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).

         Section § 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.

         Unlike 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 ...


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