Rose v. Commissioner of Social Security

Filing 32

ORDER granting 31 Motion for Attorney Fees. Signed by Magistrate Judge Clifford J. Proud on 11/21/2018. (jmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CARROLL ROSE,

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Plaintiff,
vs.
COMMISSIONER of SOCIAL
SECURITY,
Defendant.

Civil No. 16-cv-926-JPG-CJP

ORDER for ATTORNEY’S FEES
PROUD, Magistrate Judge:
This matter is before the Court on Plaintiff’s Unopposed Motion for
Approval of Attorney’s Fees Pursuant to 42 U.S.C. § 406(b) (Doc. 31). Plaintiff’s
counsel states that defendant’s counsel has informed him that she has no
objection to the motion.
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 (Doc. 31, Ex. 2) provided for a
fee of 25% of plaintiff’s past-due benefits. The Commissioner withheld 25% of the
past due amount payable to plaintiff ($18,938.50) pending court approval of the
fee. (Doc. 31. Ex. 1). Because the attorney who represented plaintiff at the agency
level has requested a fee of $3,437.50, counsel here seeks a fee of $15,501.00.
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
for such representation except as provided in this paragraph.” Ibid. In practical
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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).
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 $15,501.00 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 Unopposed Motion for Approval of Attorney’s Fees
Pursuant to 42 U.S.C. § 406(b) (Doc. 31) is GRANTED.

The Court awards

plaintiff’s counsel Barry A. Schultz a fee of $15,501.00 (fifteen thousand, five
hundred and one dollars).
Counsel shall refund to plaintiff the amount previously awarded under the
EAJA, $7,060.50.
IT IS SO ORDERED.
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DATED: November 21, 2018.

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

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