United States District Court, N.D. Indiana, Fort Wayne Division
YVETTE J. ANDERSON, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, sued as Andrew Saul, Commissioner of SSA,  Defendant.
OPINION AND ORDER
Collins United States Magistrate Judge
Yvette J. Anderson brought this suit to contest a denial of
disability benefits by Defendant Commissioner of Social
Security (“Commissioner”). (ECF 1). On July 18,
2018, this Court entered an Opinion and Order that reversed
the Commissioner's denial of benefits and remanded the
case for further proceedings. (ECF 18).
counsel, Ann M. Trzynka (“Counsel”), now moves
pursuant to 42 U.S.C. § 406(b) for the Court's
authorization of attorney fees in the amount of $13, 168, 63,
less an offset of $9, 000 for previously awarded attorney
fees, for her representation of Anderson in federal court.
(ECF 24). The Commissioner filed a response indicating that
he neither supports nor opposes 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
April 13, 2017, Counsel entered into a Federal District Court
Fee Agreement (the “Fee Agreement”) with Anderson
for her representation of Anderson in federal
court. (ECF 24-1 at 34-35). The Fee Agreement
provides that Counsel will receive twenty-five percent of any
past due benefits awarded to Anderson and her family in the
event her disability appeal is successful. (Id. at
April 26, 2017, Anderson filed the instant action in this
Court, appealing the Commissioner's denial of her
application for disability benefits. (ECF 1). On July 18,
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 18).
October 16, 2018, Anderson filed a motion for an award of
attorney fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412, in the amount of
$9, 153 for the 46.7 hours that Counsel spent advocating
Anderson's claim in federal court. (ECF 20). On October
30, 2018, the parties filed a stipulation to an EAJA fee
award of $9, 000. (ECF 22). The Court then granted the
stipulated motion, ordering the Commissioner to pay the EAJA
fee award of $9, 000 to Anderson. (ECF 23).
Commissioner sent a notice of award to Anderson on February
14, 2019, informing that she was entitled to Supplemental
Security Income beginning September 2015. (ECF 24-1 at 2, 8).
And on July 22, 2019, the Commissioner sent a notice of award
to Anderson, stating that she was entitled to Disability
Insurance Benefits beginning November 2015. (Id. at
2, 26). Consequently, Anderson was entitled to past-due
benefits in the amount of $53, 063. (Id. at 2). On
November 21, 2019, Counsel filed the instant motion (together
with affidavits, a memorandum, exhibits, and an affidavit),
seeking fees under § 406(b) in the amount of $13, 168.63
for the 46.7 hours Counsel spent advocating Anderson's
appeal in federal court. (ECF 24, 24-1, 24-2). Counsel
further acknowledges that the $9, 000 previously awarded EAJA
fee award should be offset from the requested § 406(b)
award of $13, 168.63, leaving a net § 406(b) award of
$4, 168.63. (ECF 24-1 at 5).
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 ...