Soultz v. Commissioner of Social Security

Filing 40

OPINION AND ORDER GRANTING 37 MOTION for Attorney Fees Pursuant to 42 U.S.C. § 406(b) filed by Nicole Soultz and AWARDING attorney fees under 42 U.S.C. § 406(b) in the amount of $2,088.00, which accounts for the need to offset EAJA fees. Signed by Judge Theresa L Springmann on 1/11/2021. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
NICOLE SOULTZ,
Plaintiff,
v.

CAUSE NO.: 1:18-CV-39-TLS

ANDREW SAUL, Commissioner of the
Social Security Administration,
Defendant.
OPINION AND ORDER
This matter is before the Court on the Plaintiff’s Motion for Authorization of Attorney
Fees Pursuant to 42 U.S.C. § 406(b) [ECF No. 37]. The Plaintiff’s attorney requests attorney fees
in the amount of $12,438.00 pursuant to 42 U.S.C. § 406(b). Pl.’s Mem. 2, ECF No. 38. The
Defendant has filed a Response [ECF No. 39] indicating that he does not oppose the Plaintiff’s
Motion. For the reasons stated below, the Plaintiff’s Motion is GRANTED.
BACKGROUND
The Plaintiff initiated this action for judicial review of the Commissioner of Social
Security’s decision denying her application for disability insurance benefits and supplemental
security income. On December 12, 2018, the Court granted the Parties’ Agreed Motion for
Reversal with Remand for Further Administrative Proceedings. ECF No. 26. On January 29,
2019, the Court awarded $10,350.00 in attorney fees under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412. ECF No. 29.
On remand, the Social Security Administration issued a Notice of Award entitling the
Plaintiff to past-due disability insurance benefits, of which twenty-five percent in the amount of
$12,438.00 was withheld. See Notice of Award 4, ECF No. 37-1. The Plaintiff filed the instant

motion [ECF No. 37], requesting that the Court award Plaintiff’s counsel $12,438.00 in attorney
fees pursuant to § 406(b). This amount is based on the retainer agreement between the Plaintiff
and her attorney [ECF No. 37-2], in which the Plaintiff agreed to pay her attorney twenty-five
percent of all past-due benefits for her work. The requested amount of $12,438.00 for § 406(b)
fees is based on the twenty-five percent of past-due benefits; and the Plaintiff’s attorney requests
the Court to order the Commissioner to remit $2,088.00 to her, representing the award,
$12,483.00, minus the EAJA fees, $10,350.00. See Pl.’s Mem. 3–4, ECF No. 38.
ANALYSIS
The Plaintiff’s counsel requests $12,438.00 in attorney fees pursuant to 42 U.S.C
§ 406(b). 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). 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 twenty-five 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 reasonableness analysis
considers the “character of the representation and the results the representative achieved.”
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. Id.. In addition, an award of EAJA fees under 28 U.S.C. § 2412 offsets an award under §
406(b). Id. at 796.
In this case, the requested amount of attorney fees is consistent with the contingency
agreement. The Plaintiff’s counsel represents that the proposed fee equals an effective hourly

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rate of approximately $226 for the combined EAJA and § 406(b) fees. See Pl’s Mem. 2. Such an
hourly rate is reasonable given the contingent nature of this case. See, e.g., Osmun v. Comm’r of
Soc. Sec., 1:16-CV-273, 2020 WL 7334271, *3 (N.D. Ind. Dec. 14, 2020) (effective hourly rate
of $525); Niebuhr v. Saul, 18-CV-720, 2020 WL 6484488, at *1 (W.D. Wis. Nov. 4, 2020)
(effective hourly rate of $579); Koester v. Astrue, 482 F. Supp. 2d 1078, 1083 (E.D. Wis. 2007)
(collecting cases showing that district courts have awarded attorney fees with hourly rates
ranging from $400 to $1,500). In addition, counsel obtained benefits for the Plaintiff, after
multiple denials by the agency, representing a good outcome.
CONCLUSION
For the reasons stated above, the Court GRANTS the Plaintiff’s Motion for Approval of
Attorney Fees Under 42 U.S.C. § 406(b) [ECF No. 37] and AWARDS attorney fees under 42
U.S.C. § 406(b) in the amount of $2,088.00, which accounts for the need to offset EAJA fees.
SO ORDERED on January 11, 2021.
s/ Theresa L. Springmann
JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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