Weible v. Commissioner of Social Security

Filing 32

OPINION AND ORDER GRANTS in part and DENIES without prejudice in part 29 MOTION for Attorney Fees Under 42 U.S.C. § 406 (b) by Plaintiff Angie Lea Weible. The Court AWARDS attorney fees under 42 U.S.C. § 406(b) in the net amount of & #036;5,979.00 based on the past-due benefits awarded to Plaintiff. The Court ORDERS Plaintiff's attorney to refund to Plaintiff the $4,412.80 in EAJA fees previously awarded in this case. The Court GRANTS Plaintiff's attorney leave to file a supplemental fee petition once auxiliary benefits are awarded. Signed by Judge Theresa L Springmann on 7/10/2020. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ANGIE LEA WEIBLE,
Plaintiff,
v.

CAUSE No.: 1:17-CV-240-TLS

ANDREW M. SAUL, Commissioner of the
Social Security Administration,
Defendant.
OPINION AND ORDER
This matter is before the Court on Plaintiff’s Attorney’s Motion for an Award of Attorney
Fees Under 42 U.S.C. § 406(b) [ECF No. 29], filed on June 9, 2020. For the reasons stated
below, the motion is GRANTED in part and DENIED without prejudice in part.
BACKGROUND
On June 9, 2017, Plaintiff filed a Complaint [ECF No. 1] seeking review of the decision
of the Commissioner of the Social Security Administration denying her application for Social
Security benefits. On May 10, 2018, the Court reversed the Commissioner’s decision and
remanded for further proceedings. Op. & Order, ECF No. 24. Thereafter, the Court granted
Plaintiff’s request for $4,412.80 in fees pursuant to the Equal Access to Justice Act (EAJA), 28
U.S.C. § 2412. See Order, ECF No. 28.
On September 12, 2019, the Administrative Law Judge entered a fully favorable decision.
See Decision, Ex. D, ECF No. 29-4. On May 10, 2020, the Social Security Administration issued
a Notice of Award, calculating Plaintiff’s past due benefit as $47,916.00. See Notice of Award
1–2, Ex. E, ECF No. 29-5. Twenty-five percent of the past due benefits is $11,979.00. See id. 2.
Plaintiff’s hearing representative sought and recovered a fee of $6,000.00 at the administrative
level pursuant to 42 U.S.C. § 406(a). Pl.’s Mot. ¶ 8, ECF No. 29.

This case also involves dependent benefits. Id. ¶ 10. However, Plaintiff’s attorney has not
attached a Notice of Award of past-due benefits to Plaintiff’s auxiliaries. Instead, Plaintiff’s
attorney calculates the anticipated benefit to be $24,557.85, twenty-five percent of which would
be $6,139.46.
The fee agreement between Plaintiff and counsel provides, in part: “If a U.S. Court rules
in my favor AND I later prevail on a the claim that was the subject of my Court case, I will pay
as a fee up to twenty-five percent (25%) of any past-due Social Security benefits awarded to me
and my family pursuant to 42 U.S.C. § 406(b).” Ex. A, Fee Agreement ¶ 2.C., ECF No. 29-1.
The fee agreement further provides:
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.
Id. ¶ 2.D.
ANALYSIS
“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 Culberston v. Berryhill, 139 S. Ct. 517, 520 (2019)). “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 twenty-five percent of the past-due benefits to which
the social security claimant is entitled.” Hoover, 2019 WL 3283047, at *1. “The reasonableness
analysis considers the ‘character of the representation and the results achieved.’” Id. at *4 (citing
Gisbrecht v. Barnhardt, 535 U.S. 789, 807 (2002)). Reasons to reduce an award include an
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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 807. 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).
In the instant motion brought under § 406(b), Attorney Randal S. Forbes calculates a
twenty-five percent attorney fee of $18,118.46, comprised of twenty-five percent of the past-due
benefits awarded to Plaintiff ($11,979.00) and twenty-five percent of the anticipated past-due
benefits to be awarded to Plaintiff’s auxiliaries ($6,139.46). Pl.’s Mot. ¶ 12. Counsel avers that
he worked 22.4 hours during this litigation to obtain the reversal and remand. Id. at ¶ 4 (citing
Ex. B, ECF No. 29-2). Counsel recognizes that the § 406(b) fee award will be reduced by
$6,000.00 for the § 406(a) award and that counsel must refund to Plaintiff the EAJA award of
$4,412.80. Id. at ¶¶ 8, 12, 17. Counsel contends that the requested attorney fee is reasonable in
light of the contingent nature of the representation, the successful result achieved, and the
amount of time worked on the case. Id. ¶ 15.
The Commissioner filed a response [ECF No. 31], asserting that the Court should
consider only the known amount of past-due benefits withheld for an attorney fee ($11,979.00)
based on the May 10, 2020 Notice of Award of past-due benefits to Plaintiff. Plaintiff’s attorney
did not file a reply brief. The Court finds that the request for § 406(b) fees based on an award of
past-due benefits to Plaintiff’s auxiliaries is not supported at this time by documentation
demonstrating an award to the auxiliaries or a withheld amount for attorney fees based on such
an award. Therefore, the Court denies without prejudice the request for attorney fees related to
past-due benefits awarded to Plaintiff’s auxiliaries. Plaintiff’s counsel is granted leave to file a
supplemental fee petition once auxiliary benefits are awarded.
As a result, the requested § 406(b) attorney fee based on Plaintiff’s award of past-due
benefits is $11,979.00 from which the § 406(a) award of $6,000.00 is subtracted for a net award
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under § 406(b) of $5,979.00. The EAJA award will be refunded to Plaintiff from this net award.
The Court finds that $5,959 in attorney fees is consistent with the fee agreement and the time
worked in this case at the federal court level. Counsel indicates that he worked 22.4 hours on this
case, which results in an effective hourly rate of only $266.92. This effective hourly rate is more
than reasonable given the contingent nature of the representation and in light of fees that have
been approved in similar cases. See, e.g., Hoover, 2019 WL 3283047, at *4 (effective hourly rate
of $800); Hill v. Comm’r of Soc. Sec., No. 1:11-CV-134, 2016 WL 2643360, at *4 (N.D. Ind.
May 10, 2016) (effective hourly rate of $810); Bianco v. Colvin, No. 3:14-CV-98, 2016 WL
1295926, at *3 (N.D. Ind. Apr. 4, 2016) (effective hourly rate of $825). In addition, counsel
obtained a significant benefit for Plaintiff of $47,916.00 in past-due benefits. Thus, the Court
grants the request for § 406(b) attorney fees in the net amount of $5,979.00 based on the past-due
benefits awarded to Plaintiff.
CONCLUSION
For the reasons stated above, Plaintiff’s Attorney’s Motion for an Award of Attorney
Fees Under 42 U.S.C. § 406(b) [ECF No. 29] is GRANTED in part and DENIED without
prejudice in part. The Court AWARDS attorney fees under 42 U.S.C. § 406(b) in the net amount
of $5,979.00 based on the past-due benefits awarded to Plaintiff. The Court ORDERS Plaintiff’s
attorney to refund to Plaintiff the $4,412.80 in EAJA fees previously awarded in this case. The
Court GRANTS Plaintiff’s attorney leave to file a supplemental fee petition once auxiliary
benefits are awarded.
SO ORDERED on July 10, 2020.
s/ Theresa L. Springmann
JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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