Gass v. Commissioner of Social Security
OPINION AND ORDER: The Court GRANTS 28 the Unopposed Motion for Attorney Fee Pursuant to § 206(b)(1), AWARDS an attorney fee under 42 U.S.C. § 406(b) of $59,971.75, and DIRECTS that the amount of $39,865.10, which already accounts for the offset of EAJA fees of $20,106.65, be paid directly to counsel for the Plaintiff. Signed by Judge Theresa L Springmann on 11/21/2022. (ash)
USDC IN/ND case 1:19-cv-00404-TLS document 32 filed 11/21/22 page 1 of 3
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
STEVEN R. GASS,
CAUSE NO.: 1:19-CV-404-TLS
KILOLO KIJAKAZI, Acting Commissioner
of the Social Security Administration,
OPINION AND ORDER
This matter is before the Court on an Unopposed Motion for Attorney Fee Pursuant to
§ 206(b)(1) [ECF No. 28]. The Plaintiff’s attorney requests attorney fees in the amount of
$59,971.75 pursuant to 42 U.S.C. § 406(b), with a net amount of $39,865.10 paid to counsel. The
Plaintiff’s attorney represents that the Defendant does not oppose the motion. For the reasons
stated below, the Motion is GRANTED.
The Plaintiff’s attorney represented the Plaintiff in two civil actions before this Court for
judicial review of the Commissioner’s unfavorable decision on his applications for disability
insurance benefits and supplemental security income. On November 22, 2021, the Court reversed
and remanded this case for further proceedings. ECF No. 23. In total, the Court awarded
$20,106.65 in attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412,
based on of 113.3 hours of legal services in cause number 1:16-cv-292 and the instant cause of
On remand, the Social Security Administration issued a Notice of Award entitling the
Plaintiff to past-due disability insurance benefits in the amount of $239,887.00, twenty-five
USDC IN/ND case 1:19-cv-00404-TLS document 32 filed 11/21/22 page 2 of 3
percent of which ($59,971.75) was withheld for the payment of attorney fees. See Notice of
Award 3, ECF No. 28-1. The Plaintiff’s attorney filed the instant motion [ECF No. 28] on
November 3, 2022, requesting that the Court award attorney fees pursuant to § 406(b) in the net
amount of $39,865.10. This amount is based on the retainer agreement between the Plaintiff and
his attorney [ECF No. 28-2], in which the Plaintiff agreed to pay his attorney twenty-five percent
of all past-due benefits for work at the federal court level. The total requested § 406(b) award
equals $59,971.75, based on the withheld twenty-five percent of past-due benefits. Counsel for
the Plaintiff requests that the award of $59,971.75 be offset by the total EAJA fees award of
$20,106.65, for a net payment to the attorney of $39,865.10 in § 406(b) fees.
The Plaintiff’s counsel requests a net payment of $39,865.10 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 id. § 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.
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In this case, the requested amount of attorney fees is consistent with the contingency
agreement. The proposed fee equals an effective hourly rate of approximately $529 for the total
requested § 406(b) fee award. See Pl. Mot. ¶ 9 (reflecting 113.3 attorney hours). Such an hourly
rate is reasonable given the contingent nature of this case. See, e.g., Osmun v. Comm’r of Soc.
Sec., No. 1:16-CV-273, 2020 WL 7334271, at *3 (N.D. Ind. Dec. 14, 2020) (effective hourly rate
of $525); Niebuhr v. Saul, No. 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 a great benefit for the Plaintiff in the
past-due benefits award as well as future benefits.
For the reasons stated above, the Court GRANTS the Unopposed Motion for Attorney
Fee Pursuant to § 206(b)(1) [ECF No. 28], AWARDS an attorney fee under 42 U.S.C. § 406(b)
of $59,971.75, and DIRECTS that the amount of $39,865.10, which already accounts for the
offset of EAJA fees of $20,106.65, be paid directly to counsel for the Plaintiff.
SO ORDERED on November 21, 2022.
s/ Theresa L. Springmann
JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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