Kruse v. Commissioner of Social Security

Filing 35

ORDER granting #32 Motion for Attorney Fees. Signed by Judge David R. Herndon on 7/25/2017. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GEORGE A. KRUSE,
Plaintiff,
vs.

Civil No. 15-cv-925-DRH-CJP

NANCY A. BERRYHILL,
Acting Commissioner of Social
Security,
Defendant. 1
ORDER
HERNDON, District Judge:
This matter is before the Court on Plaintiff’s Motion for Attorney’s Fees
(Doc. 32).

Defendant has responded that she has no objection. Doc. 34.

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 his 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 ($15,328.00) pending court approval of the
fee. Doc. 32. Ex. 2. Because the attorney who represented plaintiff before the
agency after remand has already been awarded a fee of $6,000.00, counsel here
seeks a fee of only $9,328.00.
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

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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for such representation except as provided in this paragraph.” Ibid. In practical
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 ($5,435.60) 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 $9,328.00 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 Attorney’s Fees (Doc. 32) is
GRANTED. Pursuant to 42 U.S.C. §406(b), the Court awards plaintiff’s counsel
Howard D. Olinsky a fee of $9,328.00 (nine thousand, three hundred and twentyeight dollars).

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Counsel shall refund to plaintiff the amount previously awarded under the
EAJA, $5,435.60.

Digitally signed by
Judge David R.
Herndon
Date: 2017.07.25
12:31:45 -05'00'

IT IS SO ORDERED.
DATED: July 25, 2017

United States District Judge

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