Hoover v. Commissioner of Social Security

Filing 33

OPINION AND ORDER GRANTING 31 MOTION for Attorney Fees 8,520 to Plaintiff's counsel pursuant to 42 USC § 406(b), filed by Ruth Ann Hoover. Signed by Chief Judge Theresa L Springmann on 7/22/2019. (mrm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
RUTH A. HOOVER,
Plaintiff,
v.

CAUSE NO.: 1:16-CV-427-TLS

ANDREW SAUL, Commissioner of the
Social Security Administration,
Defendant.

OPINION AND ORDER
This matter is before the Court on the Plaintiff’s Attorney’s Motion for an Award of
Attorney Fees under 42 U.S.C. § 406(b) [ECF No. 31], filed on May 28, 2019. The Motion
requests an award of attorney fees in the amount of $8,520.00 pursuant to the Social Security
Act, 42 U.S.C. § 406, for representation of the Plaintiff in federal court. The Commissioner has
no objection to the amount requested. See Def.’s Resp., ECF No. 32. For the reasons set forth
below, the Court grants the motion and awards $8,520.00 in fees pursuant to 42 U.S.C. § 406(b).

BACKGROUND
The Plaintiff initiated this action for judicial review of the Commissioner of Social
Security’s decision denying her application for disability insurance benefits. On November 16,
2017, the Court granted the Plaintiff’s request, reversing and remanding for further proceedings.
Under 42 U.S.C. § 2412, the Court awarded $2,600.00 in EAJA fees on February 15, 2018.
On remand, an Administrative Law Judge (ALJ) found that the Plaintiff has been
disabled since November 2009 and issued a Notice of Decision–Fully Favorable. Pl.’s Att’y’s

Mot. for an Award of Att’y Fees Under 42 U.S.C. § 406(b), Ex. D, ECF No. 31-4. The ALJ also
approved the fee agreement between the Plaintiff and her representative at the administrative
level. Id. at 5.
On May 14, 2019, the Social Security Administration issued a Notice of Award,
awarding the Plaintiff $117,248.00 in past-due Social Security benefits. Pl.’s Att’y’s Mot. for an
Award of Att’y Fees Under 42 U.S.C. § 406(b), Ex. E, p. 3, ECF No. 31-5. Twenty-five percent
of the past-due benefits is $29,312.00, which the Social Security Administration withheld for the
payment of fees. Id. at 3-4. The Social Security Administration paid the Plaintiff’s representative
at the administrative level $6,000 under § 406(a) and indicated that the remainder of $23,312.00
was being held for any award of fees by this Court under § 406(b). Id. at 4.

LEGAL STANDARD
The Social Security Act allows for a reasonable fee to be awarded both for representation
at the administrative level, see 42 U.S.C. § 406(a), as well as representation before the Court, see
42 U.S.C. § 406(b). See Culbertson v. Berryhill, 139 S. Ct. 517, 520 (2019) (quoting Gisbrecht v.
Barnhart, 535 U.S. 789, 794 (2002)). Under § 406(b), the Court may award a reasonable fee to
the attorney who has successfully represented the claimant in federal court, not to exceed twentyfive percent of the past-due benefits to which the social security claimant is entitled. 42 U.S.C.
§ 406(b)(1)(A); Gisbrecht, 535 U.S. at 792. The twenty-five percent cap applies only to fees for
court representation and not to the aggregate fees awarded under Sections 406(a) and 406(b).
Culbertson, 139 S. Ct. at 523. However, an award of EAJA fees under 42 U.S.C. § 2412 offsets
an award under § 406(b). Gisbrecht, 535 U.S. at 796.

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ANALYSIS
In the instant motion, counsel for the Plaintiff requests an award of fees under § 406(b)
for representation of the Plaintiff in federal court in the amount of $8,520.00, which is in
addition to the EAJA award of $2,600.00, for a total fee award of $11,120.00. As noted above,
the Social Security Administration awarded the Plaintiff’s representative at the administrative
level fees of $6,000.00. Thus, the total fees for representation at both levels is $17,120.00.
Although the Supreme Court in Culbertson held that “the statute does not impose a 25% cap on
aggregate fees” sought under § 406(a) and § 406(b), Culbertson, 139 S. Ct. at 523, the fee
agreement entered into by counsel and the Plaintiff for representation in federal court provides
otherwise:
D. In a case in which the court awards both a fee from my past-due benefits under
42 U.S.C. § 406(b) and an EAJA fee, attorney will refund to me the smaller of the
two amounts or will otherwise ensure that the EAJA fee award is deducted from
any 42 U.S.C. § 406(b) fee award. Any administrative fee that the Agency pays to
my hearing lawyer under 42 U.S.C. § 406(a) will also be deducted from any
§ 406(b) award. Under no circumstances will the total fees awarded for work
under § 406(b) in the U.S. District Court and/or in a higher U.S. Court exceed
twenty-five percent (25%) of any past-due benefits awarded to me and my family
by the Social Security Administration.
Pl.’s Att’y’s Mot. for an Award of Att’y Fees Under 42 U.S.C. § 406(b), Ex. A, § 2.D, ECF No.
31-1 (italicized emphasis added). Because the total fees of $17,120.00 do not exceed $29,312.00
(twenty-five percent of the Plaintiff’s past-due benefits), the requested fees are consistent with
the fee agreement.
Nevertheless, the Court must also review the fee request to ensure that it is reasonable.
Gibrecht, 535 U.S. at 807. The reasonableness analysis considers the “character of the
representation and the results the representative achieved.” Id. at 808. Reasons to reduce an
award may be delay by the attorney or if the past-due benefit are large in comparison to the

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amount of time counsel spent on the case. Id. Plaintiff’s counsel worked 13.9 hours in this
litigation to obtain a reversal and remand for further proceedings. The effective hourly rate of
EAJA and § 406(b) fees combined would be $800.00, which is well within the range of
reasonableness given the Plaintiff’s attorney’s years of experience, the contingent nature of this
representation, and the fees that have been approved in similar cases in this District. See, e.g.,
Hill v. Comm’r of Soc. Sec., No. 1:11-CV-134, 2016 WL 2653360, at *4 (N.D. Ind. May 10,
2016) (effective rate of $810 per hour); Bianco v. Colvin, No. 3:14-CV-98, 2016 WL 1295926, at
*3 (N.D. Ind. Apr. 4, 2016) (effective rate of $825 per hour). There is no indication of delay in
this case. Accordingly, the Court finds reasonable the § 406(b) fee request in the amount of
$8,520.00.

CONCLUSION
Finding the requested fee reasonable for the hours of legal work rendered, the contingent
nature of the representation, and the resulting lifetime benefit to the Plaintiff, the Court
GRANTS the Plaintiff’s Attorney’s Motion for an Award of Attorney Fees Under 42 U.S.C.
§ 406(b) [ECF No. 31] and awards a reasonable fee of $8,520 to Plaintiff’s counsel pursuant to
42 U.S.C. § 406(b).
SO ORDERED on July 22, 2019.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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