Schlatter v. Commissioner of Social Security

Filing 33

ORDER granting 31 Motion for Attorney Fees. Signed by Magistrate Judge Clifford J. Proud on 7/25/2017. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CYNTHIA SCHLATTER,
now known as CYNTHIA HARMON,
Plaintiff,
vs.
NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant. 1

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Civil No. 15-cv-485-CJP

ORDER
PROUD, Magistrate Judge:
This matter is before the Court on Plaintiff’s Motion for Approval of
Attorneys Fees under 42 U.S.C. §406(b). (Doc. 31).

Defendant has responded

that she has no objection. Doc. 32.
After this Court reversed and remanded pursuant to sentence four of 42
U.S.C. §405(g), the Commissioner granted plaintiff’s application for benefits. The
fee agreement between plaintiff and her attorney provided for a fee of 25% of
plaintiff’s past-due benefits.

The Commissioner approved that agreement and

withheld 25% of the past due amount ($18,601.25) pending court approval of the
fee. Doc. 30. Ex. 1, 2, & 3. 4.
42 U.S.C. §406(b)(1)(A) provides that the Court may allow a “reasonable
fee,” not in excess of 25% of the total of the past-due benefits. However, if the
Court approves such a fee, “no other fee may be payable or certified for payment
for such representation except as provided in this paragraph.” Ibid. In practical
Nancy A. Berryhill is now the Acting Commissioner of Social Security. She is automatically
substituted as defendant in this case. See Fed. R. Civ. P. 25(d); 42 U.S.C. §405(g).
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terms, this means that, when a fee is awarded under §406(b)(1), counsel must
refund any amount previously awarded under the Equal Access to Justice Act, 28
U.S.C. §2412(d)(1)(B).

Counsel represents that he will refund to plaintiff the

EAJA fee ($9,000.00) that was previously awarded.
The Supreme Court has held that §406(b)(1) controls, but does not
displace, contingent fee agreement in social security cases:
Most plausibly read, we conclude, § 406(b) does not displace contingent-fee
agreements as the primary means by which fees are set for successfully
representing Social Security benefits claimants in court. Rather, § 406(b)
calls for court review of such arrangements as an independent check, to
assure that they yield reasonable results in particular cases.
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).
Having reviewed the circumstances presented here, including the time and
effort expended by counsel, the excellent result received by plaintiff, the amount of
the past-due benefits and the value of the projected benefits over plaintiff’s
expected life span, the Court concludes that $18,601.25 is a reasonable fee here.
The Court notes that the Commissioner does not oppose the motion. While the
Commissioner has no direct stake in the §406(b)(1) fee request, she “plays a part
in the fee determination resembling that of a trustee for the claimants.”
Gisbrecht, 535 U.S. at 798, n. 6.
Wherefore, Plaintiff’s Motion for Approval of Attorneys Fees under 42
U.S.C. §406(b) (Doc. 31) is GRANTED.

The Court awards plaintiff’s counsel

Barry A. Schultz a fee of $18,601.25 (eighteen thousand, six hundred and one
dollars and twenty-five cents).
Counsel shall refund to plaintiff the amount previously awarded under the
EAJA, $9,000.00.
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IT IS SO ORDERED.
DATED: July 25, 2017.

s/Clifford J. Proud
CLIFFORD J. PROUD
UNITED STATES MAGISTRATE JUDGE

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