Smith v. Berryhill

Filing 35

MEMORANDUM Order: For the reasons stated in the Court's Memorandum Order, Claimant's Unopposed Motion for Approval of Attorney Fees Pursuant to 42 U.S.C. 406(b) [ECF No. 34] is granted, and counsel is awarded $18,811.75. Signed by the Honorable Jeffrey T. Gilbert on 1/10/2022. Mailed notice(ber, )

Case: 1:18-cv-08174 Document #: 35 Filed: 01/10/22 Page 1 of 4 PageID #:1064

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
RYAN S., 1
Claimant,
v.
KIJAKAZI, 2

KILOLO
Acting Commissioner of Social Security,

No. 18 C 8174
Magistrate Judge Jeffrey T. Gilbert

Respondent.
MEMORANDUM ORDER
This matter is before the Court on Claimant’s Unopposed Motion for Approval
of Attorney Fees Pursuant to 42 U.S.C. 406(b). [ECF No. 34]. For the reasons stated
below, the Motion is granted.
On August 15, 2019, the Court remanded this matter to the Commissioner of
Social Security for further proceedings. [ECF No. 28]. Following remand, Claimant
appeared before an Administrative Law Judge who approved his claim for disability
insurance benefits. On November 22, 2021, the Social Security Administration issued
a Notice of Award letter and withheld twenty-five percent of Claimant’s award for his
past-due benefits in anticipation of a request for attorney fees. See [ECF No. 34-1],
Exhibit A (Notice of Award). Claimant has agreed to pay his counsel twenty-five

Pursuant to Northern District of Illinois Local Rule 8.1 and Internal Operating Procedure
22, the Court will identify the non-government party by using his first name and the first
initial of the last name.
1

Kilolo Kijakazi became the Acting Commissioner of Social Security on July 9, 2021.
Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court has substituted
Acting Commissioner Kijakazi as the named defendant.
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percent of all past-due benefits awarded to him, which amounts to $18,811.75. See
[ECF No. 34-2], Exhibit B (Signed Federal Fee Agreement).
Counsel represents that he did not receive any administrative fees in this case.
While counsel was awarded $5,500.00 attorney fees pursuant to the Equal Access to
Justice Act (“EAJA”), 28 U.S.C. § 2412, this amount was taken in its entirety to offset
a federal debt owed by Claimant to the government and counsel received none of the
fees previously awarded. See [ECF No. 34-3], Exhibit C (Treasury Offset Letter).
Claimant’s counsel now seeks an award of $18,811.75 for attorney fees pursuant to
42 U.S.C § 406(b). The Commissioner does not oppose counsel’s request for attorney
fees but cannot stipulate or agree to the award of fees because any payment will be
deducted from Claimant’s past due benefits and will not be composed of any agency
funds.
The Social Security Act allows for a reasonable fee to be awarded both for
representation at the administrative level as well as representation in federal court.
See 42 U.S.C § 406(a) and (b); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002).
Under section 406(b), a district court may award a reasonable fee to the attorney who
successfully has represented a claimant in federal court, not to exceed twenty-five
percent of any past-due benefits awarded to a claimant. See 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 the representative achieved.” Gisbrecht, 535 U.S.
at 808. Reasons to reduce an award include an attorney’s unjustifiable delay or if the

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past-due benefits are large in comparison to the amount of time an attorney has spent
on a case. Id.
The Court finds that counsel’s request for $18,811.75 in attorney fees is
reasonable and there are no reasons to reduce the amount requested. Claimant’s
attorney, Barry Schultz, has extensive experience in the field of social security
benefits, which is his sole area of practice. His experience and efforts resulted in a
positive result for Claimant, and the benefits obtained for Claimant in this case were
substantial. Counsel states that he spent 28.8 hours representing Claimant in federal
court. See [ECF No. 34-4] (See Exhibit D - Itemization of Time). Although a lodestar
calculation is not determinative under Gisbrecht, the lodestar in this case results in
an hourly rate of $653.19, which falls well below other awards that have been found
reasonable and have been entered in this district. 3 The effective hourly rate for the
time counsel spent pursuing this case in this court is not so high as to cause the Court
to characterize it as a windfall based on the work performed, the result achieved, the
attorney time spent in the litigation, and the attorneys’ fees awarded in other similar
cases in this district. The Court finds that an award of $18,811.75 is reasonable given
the contingent nature of this case and the favorable past-due benefit award.

See, e.g., Evans v. Saul, Case No. 16 C 4962 (N.D. Ill. July 12, 2019) (awarding an effective
hourly rate of $1,492.21); Zambrano v. Berryhill, Case No. 14 C 0048 (N.D. Ill. May 30, 2017)
(awarding $1,232.00 per hour); Kirby v. Berryhill, 2017 WL 5891059 (N.D. Ill. Nov. 29,
2017) (awarding $1,612.28 per hour); Mathis v. Commissioner of Social Security, 2017 WL
1483429 (W.D. Mich. Mar. 17, 2017) ($1,640.00 per hour); Smith v. Colvin, Case No. 14 C
3923 (N.D. Ill. Dec. 21, 2016) ($1,437 per hour); Newman v. Colvin, No. Case No. 13 C 6942
(N.D. Ill. Oct. 28, 2015) ($1,430.00 per hour).

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For these reasons, Claimant’s Unopposed Motion for Approval of Attorney Fees
Pursuant to 42 U.S.C. 406(b) [ECF No. 34] is granted, and counsel is awarded
$18,811.75.
It is so ordered.
____________________________________
Jeffrey T. Gilbert
United States Magistrate Judge
Dated: January 10, 2021

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