Rivera v. Commissioner of Social Security

Filing 34

OPINION AND ORDER: The Court GRANTS the 33 Unopposed Petition for Attorney Fee Pursuant to § 206(b)(1), AWARDS an attorney fee under 42 U.S.C. § 406(b)of $19,780.25 and DIRECTS that the amount of $12,280.25, which already accounts for the offset of EAJA fees of $7,500.00, be paid directly to counsel for the Plaintiff. Signed by Judge Theresa L Springmann on 11/13/23. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
CARLOS J. RIVERA, JR.,
Plaintiff,
v.

CAUSE NO.: 2:20-CV-387-TLS-SLC

KILOLO KIJAKAZI, Acting Commissioner
of the Social Security Administration,
Defendant.
OPINION AND ORDER
This matter is before the Court on the Unopposed Petition for Attorney Fee Pursuant to
§ 206(b)(1) [ECF No. 33], filed on November 10, 2023. The Plaintiff’s attorney requests attorney
fees in the amount of $19,780.25 pursuant to 42 U.S.C. § 406(b), with a net amount of
$12,280.25 paid to counsel. The Commissioner does not object. ECF No. 33 at 6. For the reasons
stated below, the Motion is GRANTED.
BACKGROUND
The Plaintiff’s attorney represented the Plaintiff before this Court in a judicial review of
the Commissioner’s unfavorable decision on the Plaintiff’s application for disability insurance
benefits and supplemental security income. The Court reversed and remanded this case for
further proceedings. ECF No. 29. Subsequently, the Court awarded $7,500.00 in attorney fees
under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. ECF No. 32.
On remand, the Social Security Administration issued a Notice of Award entitling the
Plaintiff to past-due disability insurance benefits in the amount of $76,401.00, twenty-five
percent of which ($19,100.25) was withheld for the payment of attorney fees. See Mot. Ex. A at
3, ECF No. 33-1 (disability insurance benefit award). The Social Security Administration also

issued a Notice of Award entitling the Plaintiff to past-due supplemental security income
benefits. See id. at 7 (supplemental security income award). Plaintiff’s counsel represents that the
Commissioner’s Office of Central Operations calculated the benefits for both the disability
insurance benefits and supplemental security income benefits to be $79,121.00, which is
comprised of the $76,401.00 past-due disability insurance benefit award and a past-due
supplemental security income benefit award of $2,720.00 for the period of July 2018 to October
2018 (the time period prior to the disability income benefit award). ECF No. 33 at 1–2.
The Plaintiff’s attorney filed the instant motion requesting that the Court award attorney
fees pursuant to § 406(b) in the net amount of $12,280.25. This amount is based on the retainer
agreement between the Plaintiff and his attorney, Mot. Ex. B, ECF No. 33-2, 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 request for an award under § 406(b) is $19,780.25, which equals the
twenty-five percent of the total past-due disability insurance benefits and supplemental security
income of $79,121.00. Counsel for the Plaintiff requests that the award of $19,780.25 be offset
by the total prior EAJA fees awards of $7,500.00, for a net payment to the attorney of
$12,280.25 in § 406(b) fees.
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
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.

2

§ 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. 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 proposed fee equals an effective hourly rate of approximately $513.77 for the
total requested § 406(b) fee award of $19,780.25. See Mot. Ex. D at 1–2, ECF No. 33-4
(reflecting 38.5 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.
CONCLUSION
For the reasons stated above, the Court GRANTS the Unopposed Petition for Attorney
Fee Pursuant to § 206(b)(1) [ECF No. 33], AWARDS an attorney fee under 42 U.S.C. § 406(b)
of $19,780.25, and DIRECTS that the amount of $12,280.25, which already accounts for the
offset of EAJA fees of $7,500.00, be paid directly to counsel for the Plaintiff.
SO ORDERED on November 13, 2023.
s/ Theresa L. Springmann
JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

3