United States District Court, N.D. Indiana, Fort Wayne Division
SUSAN A. SMITH, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Andrew Saul, Commissioner of Social Security,  Defendant.
OPINION AND ORDER
Collins United States Magistrate Judge
Susan A. Smith brought this suit to contest a denial of
disability benefits by Defendant Commissioner of Social
Security (“Commissioner”). (ECF 1). On August 22,
2018, this Court entered an Opinion and Order that reversed
the Commissioner's denial of benefits and remanded the
case for further proceedings. (ECF 19).
counsel, Barry A. Schultz (“Counsel”), now moves
pursuant to 42 U.S.C. § 406(b) for the Court's
authorization of attorney fees in the amount of $14, 106.63,
less an offset of $9, 919.70 for previously awarded attorney
fees, for his representation of Smith in federal court. (ECF
24). The Commissioner filed a response indicating that he
neither supports nor opposes the motion (ECF 25); therefore,
the motion is ripe for ruling. For the following reasons, the
motion for attorney fees will be GRANTED.
Factual and Procedural Background
January 13, 2017, Counsel entered into a Retainer and Fee
Agreement for Federal Court Representation (the “Fee
Agreement”) with Smith for his representation of Smith
in federal court. (ECF 24-4). The Fee Agreement provides
that Counsel will receive twenty-five percent of any past due
benefits awarded to Smith and her family in the event her
disability appeal is successful. (Id.).
January 17, 2017, Smith filed the instant action in this
Court, appealing the Commissioner's denial of her
application for disability benefits. (ECF 1). On August 22,
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 19).
November 16, 2018, Smith filed an agreed motion for an award
of attorney fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, in which Smith
and the Commissioner stipulated to the amount of $9, 919.70
for the 51.6 hours that Counsel spent advocating Smith's
claim in federal court. (ECF 22, 22-1). The Court then
granted the stipulated motion, ordering the Commissioner to
pay the EAJA fee award of $9, 919.70 to Smith. (ECF 23).
Commissioner sent a notice of award to Smith on October 26,
2019, informing that she was entitled to disability benefits
beginning July 2012, resulting in past-due benefits in the
amount of $70, 352.52, and auxiliary benefits to her
children. (ECF 24 at 2; ECF 24-1; ECF 24-2). On November 27,
2019, Counsel filed the instant motion, together with
exhibits, seeking fees under § 406(b) in the amount of
$14, 106.63 for the 51.6 hours Counsel spent advocating
Smith's appeal in federal court. (ECF 24; ECF 24-1 to
24-5). Counsel further acknowledges that the $9, 919.70
previously awarded EAJA fee award should be offset from the
requested § 406(b) award of $14, 106.63. (ECF 24 at 2).
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 ...