Hicks-Ferguson v. Berryhill

Filing 38

MEMORANDUM OPINION and ORDER: Signed by the Honorable Jeffrey Cole on 6/16/20. Mailed notice (yt)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JOANNE F.,
Plaintiff,
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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No. 17 C 6948
Magistrate Judge Jeffrey Cole

MEMORANDUM OPINION AND ORDER
Plaintiff’s counsel has moved for approval of attorney’s fees to be paid to him out of the
plaintiff’s past-due benefits pursuant to 42 U.S.C. §406(b). On remand from this court, an
Administrative Law Judge for the Social Security Administration determined that plaintiff was
disabled and entitled to benefits, including $90,672 in past-due benefits. Plaintiff and her counsel had
a contingency fee agreement whereby she would pay counsel 25% of any such award which, in this
case, would come to $22,668. Counsel received $6,000 for representing plaintiff at the administrative
level, which leaves $16,668 as an appropriate award following the setoff for the fees counsel already
recouped. [Dkt. #33, ¶. 5]; see Astrue v. Ratliff, 560 U.S. 586, 595 (2010) (“Section 206(b) provides
that no violation of law occurs “if, where the claimant's attorney receives fees for the same work
under both [42 U.S.C. § 406(b) and 28 U.S.C. § 2412(d) ], the claimant's attorney refunds to the
claimant the amount of the smaller fee.”); Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002)(“Fee
awards may be made under both prescriptions, but the claimant's attorney must ‘refund[d] to the
claimant the amount of the smaller fee.’”).

For the hours counsel worked on this case, the 25% contingency fee would equate to an
hourly rate of about $490 per hour. While the lodestar method doesn’t necessarily rule the day in a
contingency fee setting, see Gisbrecht v. Barnhart, 535 U.S. 789, 802, 808 (2002), $490 per hour
is not out of line with rates of awards in other cases. More importantly, counsel obtained an excellent
result for plaintiff, see Gisbrecht, 535 U.S. at 808, and the Commissioner, who acts as something like
a trustee for the claimant in these situations has no objection to the amount sought. See id., 798
n.6. While we agree with the Commissioner that some plaintiff’s counsel in these cases have tended
to overstate the risk factor to contingency fees in this District and Circuit, see Terese F. v. Saul, 396
F. Supp. 3d 793, 796 (N.D. Ill. 2019); Dettloff v. Astrue, 2015 WL 3398366 (N.D. Ill. May
27, 2015); Dettloff v. Colvin, 2015 WL 3855332 (N.D. Ill. June 22, 2015), and would urge that
such arguments be dispensed with in the future – unless counsel can provide some statistical support–
that is not reason to reduce the award in this instance. Accordingly the motion for approval of fees
pursuant to §406(b) [Dkt. #33] is granted.

ENTERED:
UNITED STATES MAGISTRATE JUDGE

DATE: 6/16/20

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