United States District Court, N.D. Indiana, Hammond Division
MARK G. MACEK, Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.
OPINION AND ORDER
P. Rodovich United States Magistrate Judge
matter is before the court on the Motion for Approval of
Attorneys Fees Pursuant to 42 U.S.C.A. Section 406(b) [DE 32]
filed by Barry A. Schultz, counsel for the plaintiff, Mark G.
Macek, on October 4, 2019. For the following reasons, the
motion is GRANTED.
plaintiff, Mark G. Macek, filed an application for Disability
Insurance benefits on June 23, 2009. His claim for benefits
was denied. Macek appealed to an administrative law judge
(ALJ), who likewise denied his claim on February 1, 2011.
Macek appealed the ALJ's decision to the Appeals Council
and then to this court, which remanded the case to the Agency
on September 27, 2013. See Macek v. Colvin, 2013 WL
5436924 (N.D. Ind. 2013).
remand, this matter was heard before ALJ Dennis Kramer who
issued an unfavorable decision on July 17, 2015. On June 7,
2016, Macek initiated this action for judicial review of the
denial of his application for benefits. (DE 1). On September
29, 2017, this court entered an Opinion and Order remanding
this matter to the Agency for further proceedings. (DE 23).
January 29, 2018, the parties filed a joint motion for
attorney fees under the Equal Access to Justice Act (EAJA).
(DE 30). The parties agreed that an award of attorney fees in
the amount of $7, 450.00 would fully satisfy and settle any
and all claims under the EAJA, 28 U.S.C. § 2412. (DE
30). On January 30, 2018, the court granted the joint motion
and awarded $7, 450.00 in EAJA fees. (DE 31).
this court's remand, an ALJ approved Macek's claim
for Disability Insurance benefits. The Social Security
Administration issued a Notice of Award letter dated May 12,
2019. Macek was awarded past-due benefits in the amount of
$239, 908.00, 25% of which is $59, 977.00. Macek also had an
eligible auxiliary, whose Notice of Award letter dated
September 15, 2019 stated that 25% of her past-due benefits
amounted to $29, 988.00.
Schultz asks the court to authorize an award of attorney fees
in the amount of $83, 965.00 under 42 U.S.C. § 406(b).
The Commissioner filed a response on November 15, 2019.
Attorney Schultz filed a reply on November 21, 2019.
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 reasonableness analysis considers the
‘character of the representation and the results
achieved.'” Gisbrecht, 535 U.S. at 808.
The award may be reduced because of an attorney's
unjustifiable delay or if the past-due benefits are large in
comparison to the amount of time an attorney has spent on a
case. Gisbrecht, 535 U.S. at 808. Counsel cannot
recover fees under both the EAJA and § 406(b), though,
so they must either refund the EAJA award or subtract that
amount from the § 406(b) request. See
Gisbrecht, 535 U.S. at 796 (explaining that “an
EAJA award offsets an award under Section 406(b)”).
Schultz requests $83, 965.00 in fees, which is 25% of
Macek's past-due benefits and the auxiliary benefits,
minus $6, 000.00 that was awarded already for work done at
the administrative level. The Commissioner took a neutral
position regarding the fees requested by Attorney Schultz.
However, the Commissioner indicated that the court should not
rely on Attorney Schultz's characterization of the
contingent risk borne by federal-court counsel in Social
Security cases in making its decision.
was represented by Attorney Schultz on his first and second
court actions, dating back to 2012. It was after this
court's second remand, and after a third ALJ hearing,
that Macek was found disabled dating back to his original
alleged onset date of November 3, 2008. Attorney Schultz
represents that he spent 92.1 hours of legal work
representing Macek in federal court, with 53.1 hours in 2012
and 39.0 hours in 2016. Attorney Schultz's total
requested fee would amount to an hourly rate of about
$911.00. That calculated rate calls into question the bounds
of reasonableness in this district. See Taylor v.
Berryhill, 2018 WL 4932042, at
*2 (S.D. Ind. Oct. 10, 2018) (collecting cases)
(“Within the Seventh Circuit, fee awards equivalent to
hourly rates ranging from $400 to $600 are consistently found
to be reasonable.”).
Commissioner has cited cases within the Seventh Circuit where
courts have found effective hourly rates similar or even
lower to be unreasonable. However, the Commissioner also
indicated that “courts in the Seventh Circuit have
reached a wide variety of conclusions concerning the
reasonableness of fees under § 406(b), so precedent
would support either a reduction in the requested fee or a
decision not to reduce it.” Attorney Schultz has
provided reference to several cases within the Seventh
Circuit where courts have found rates ranging from $900.00 to
$2, 000.00 per hour as reasonable. See Zambrano v.
Berryhill, No. 14-cv-0048 (N.D. Ill., May 30, 2017,
awarding $1, 232.00 per hour); Polli v. Berryhill,
No. 17-cv-1102, (N.D. Ill., February 27, 2019, awarding $1,
805.00 per hour); Tidwell v. Berryhill, 2018 WL
3154619, No. 3:14-cv-210 RLM (N.D. Ind., June 28, 2018,
awarding $1, 245.74 per hour); Kirby v. Berryhill,
2017 WL 5891059, No. 14 cv-5936 (N.D. Ill., November 29,
2017, awarding $1, 612.28 per hour).
support of the reasonableness of the fee requested, Attorney
Schultz emphasizes that the briefs were professionally done,
the legal arguments were made clearly, and Macek received a
favorable result. In receiving such a result, Attorney
Schultz requested only one extension to file the opening
brief in Case No. 2:12-cv-197 and two extensions to file the
opening brief in the Case No. 2:16-cv-208. Extensions of time
are common in social security cases, and the delay was not so
excessive such that it would contribute to Attorney
Schultz's profit from the accumulation of Macek's
back benefits. See
Gisbrecht, 535 U.S. at
808. Moreover, Attorney Schultz asserts he did not receive a
“windfall” because he did not submit boilerplate
briefs, but detailed briefs analyzing the specific issues
involved. In doing so, ...