Taylor v. Commissioner of Social Security

Filing 30

OPINION AND ORDER GRANTING 28 First MOTION for Attorney Fees DENNIS TAYLOR by Plaintiff Dennis K. Taylor and AWARDING attorney's fees under 42 U.S.C. § 406(b) in the amount of $4,701.83. Signed by Judge Theresa L Springmann on 7/10/2020. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION

DENNIS K. TAYLOR,
Plaintiff,
v.

CAUSE NO.: 1:17-CV-130-TLS-SLC

ANDREW M. 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. 28], filed on June 23, 2020, moving this Court
for an Order awarding attorney’s fees pursuant to 42 U.S.C. § 406(b). The Defendant has filed a
Response to Plaintiff’s Motion for Attorney Fees Under Section 406(b) of the Social Security Act
[ECF No. 29] indicating that it neither supports nor opposes the Plaintiff’s Motion. For the reasons
stated below, the Plaintiff’s Motion is GRANTED.
BACKGROUND
On September 10, 2013, the Plaintiff filed his Title II application for a period of disability
and disability insurance benefits, as well as a Title XVI application for supplemental security
income, alleging disability beginning on August 26, 2013. May 31, 2018 Op. & Order 1, ECF No.
23. The Social Security Administration initially denied the Plaintiff’s applications, and again on
reconsideration. Id. An ALJ also denied the Plaintiff’s application, finding he was not disabled prior
to his date last insured. Id. at 2. On February 2, 2017, the Appeals Council denied the Plaintiff’s
request to review the ALJ’s decision. Id. at 2. 

On April 3, 2017, the Plaintiff filed a Complaint [ECF No. 1] in which he sought review of
the denial of his benefits. On May 31, 2018, the Court reversed and remanded this case for further
proceedings. May 31, 2018 Op. & Order 10. Ultimately, the Social Security Administration issued a
Notice of Award [ECF No. 28-5] in which it stated that the Plaintiff is entitled to past-due benefits
in the amount of $55,627.50. See Notice of Award 3, ECF No. 28-5.
The Plaintiff filed a Motion for an Award of Attorney Fees Under 42 U.S.C. § 406(b) [ECF
No. 28] on June 23, 2020, requesting the Court to award the Plaintiff’s counsel $4,701.83 in §
406(b) attorney’s fees. This amount is based on the retainer agreement between the Plaintiff and his
attorneys, where the Plaintiff agreed to pay his attorneys twenty-five percent of all past-due
benefits. See Fee Agreement 1, ECF No. 28–1. The Court previously awarded counsel $ 2,377.80 in
attorney’s fees pursuant to the Equal Access to Justice Act (EAJA), see Sept. 12, 2018 Op. & Order,
ECF No. 27, and counsel indicates that the request for $4,701.83 in attorney’s fees takes into
account the previously awarded EAJA fees. See Pl.’s Mot. ¶ 14, ECF No. 28; see also Teachworth
v. Saul, No. 3:17-CV-275, 2020 WL 1812393, at *1 (“Counsel cannot recover fees under both the
EAJA and § 406(b), though, so they must either refund the EAJA award or subtract that amount
from the § 406(b) request.” (citing Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002))).
ANALYSIS
The Plaintiff’s counsel requests $4,701.83 in attorney’s fees pursuant to 42 U.S.C § 406(b)
in addition to the $2,377.80 previously awarded EAJA attorney’s fees. “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).” Hoover v. Saul,
No. 1:16-CV-427, 2019 WL 3283047, at *1 (N.D. Ind. July 22, 2019) (citing Culbertson v.
Berryhill, 139 S. Ct. 517, 520 (2019)). “Under § 406(b), the Court may award a reasonable fee to

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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.” Hoover, 2019
WL 3283047, at *1 (citing 42 U.S.C. § 406(b)(1)(A); Gisbrecht v. Barnhart, 535 U.S. 789, 792
(2002)). “The reasonableness analysis considers the ‘character of the representation and the results
achieved.’” Id. at *2 (citing Gisbrecht, 535 U.S. at 808). Reasons to reduce an award include an
attorney’s unjustifiable delay or if the past-due benefits are large in comparison to the amount of
time an attorney has spent on a case. Gisbrecht, 535 U.S. at 808. Likewise, “an award of EAJA fees
under [28 U.S.C. § 2412] offsets an award under § 406(b).” Hoover, 2019 WL 3283047, at *1
(citing Gisbrecht, 535 U.S. at 796); see also Teachworth, 2020 WL 1812393, at *1 (“Counsel
cannot recover fees under both the EAJA and § 406(b), though, so they must either refund the
EAJA award or subtract that amount from the § 406(b) request.” (citing Gisbrecht v. Barnhart, 535
U.S. 789, 796 (2002))).
In this case, the requested amount in attorney’s fees is consistent with the contingency
agreement. Fee Agreement 1. Additionally, the requested amount adequately takes into account the
delays caused by the July 27, 2017 and August 22, 2017 Motions for Extensions [ECF Nos. 15, 17].
Pl.’s Mot. ¶ 15. The Plaintiff’s counsel represents that 12 attorney hours were spent in federal court
on this case, which results in an effective hourly rate of $589.97. See id. at ¶¶ 3, 12. Such an hourly
rate is reasonable given the contingent nature of this case. See Kirby v. Berryhill, No. 14-CV-5936,
2017 WL 5891059, at * 1–2 (N.D. Il. Nov. 29, 2017) (awarding attorney’s fees with an hourly rate
of $1,612.28 and citing cases supporting the court’s holding); Heise v. Colvin, No. 14-CV-739,
2016 WL 7266741, at *2 (W.D. Wis. Dec. 15, 2016) (“This results in an effective hourly rate of just
over $1,100, appropriately high to reflect the risk of non-recovery in social security cases . . . .”);
see also Zenner v. Saul, 4:16-CV-51, 2020 WL 1698856, at *2 (N.D. Ind. Apr. 8, 2020) (awarding

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attorney’s fees with an hourly rate of $ 1,167.28); Koester v. Astrue, 482 F. Supp 2d 1078, 1083
(E.D. Wis. 2007) (collecting cases showing that district courts have awarded attorney’s fees with
hourly rates ranging from $400 to $1,500).
CONCLUSION
For the reasons stated above, the Court GRANTS Plaintiff’s Attorney’s Motion for an
Award of Attorney Fees Under 42 U.S.C. § 406(b) [ECF No. 28] and AWARDS attorney’s fees
under 42 U.S.C. § 406(b) in the amount of $4,701.83.
SO ORDERED on July 10, 2020.
s/ Theresa L. Springmann
JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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