Rock v. Commissioner of Social Security
Filing
42
ORDER GRANTING 41 Amended MOTION for Attorney Fees under 42 U.S.C. § 406(b) by Plaintiff Dale Rock and 36 First MOTION for Attorney Fees under 42 U.S.C. § 406(b) by Plaintiff Dale Rock. Plaintiff's attorney granted the requested 42 U.S.C. § 406(b) fee of $21,498.95. Signed by Judge William C Lee on 8/23/2016. (lhc)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
DALE W. ROCK,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
CAROLYN COLVIN, Acting
Commissioner of Social Security,
Defendant.
CIVIL NO. 3:14cv1715
OPINION AND ORDER
This matter is before the court on an Amended Motion for an Award of Attorneys Fees
Under 42 U.S.C.(b), filed by the Plaintiff, Dale W. Rock, on July 28, 2016. The defendant
Commissioner has not responded to the motion. However, in his motion, Plaintiff indicates that
he has discussed the fee request with the Commissioner’s counsel, and the Commissioner has
indicated that it would not oppose the award.
Discussion
Plaintiff’s counsel states that in his original fee request [DE 36], he requested a fee of
$22,589.45. After discussing the fee with the Commissioner’s counsel, Plaintiff’s attorney has
now amended that figure to $21,498.95. This new figure is based on information from the
Commissioner that Plaintiff received $4,362.00 in SSI benefits on a subsequent application and
that such amount would be deducted from Plaintiff’s past-due benefits in accordance with the
Agency’s windfall-offset rules.
Plaintiff filed a claim for Disability Insurance Benefits (DIB-Title II) and Supplemental
Security Income Benefits (SSI-Title XVI) on December 30, 2011. (Dkt. 13 at 140-52) Plaintiff’s
claims were denied on February 7, 2012. Id. at 70, 74. Plaintiff retained Keller & Keller LLP for
representation on April 1, 2012. (Plaintiff’s Exhibit A) Plaintiff agreed that “if any of my claim(s)
progress beyond the Office of Disability Adjudication and Review administrative hearing level
for review . . . and is then favorably decided that my attorney . . . may elect to use the fee petition
process to petition for up to 25% of all past due benefits without limitation.” Id. He also agreed to
“pay the costs of development of my claim(s), including but not limited to . . . costs for medical
records/reports that may be requested by my attorney at his/her discretion.” Id.
Plaintiff filed a request for reconsideration, but was denied again on June 6, 2012. (Dkt.
13 at 85, 92) Plaintiff requested an administrative hearing on June 25, 2012. Id. at 99-100.
On March 13, 2013, Plaintiff appeared in Valparaiso, Indiana for a hearing before Administrative
Law Judge (ALJ) Mario G. Silva of the Office of Disability Adjudication and Review (ODAR).
Id. at 39-65. On April 24, 2013, ALJ Silva issued an unfavorable determination. Id. at 20-33.
Plaintiff filed a request for review with the Appeals Council, but the Appeals Council denied the
request on May 9, 2014. Id. at 1-4. Plaintiff timely filed this civil action on July 8, 2014. (Dkt. 1)
On August 11, 2015, this Court issued an order remanding the Commissioner’s unfavorable
determination for further consideration under sentence four of 42 U.S.C. § 405(g). (Dkt. 32, 33)
On November 17, 2015 Plaintiff’s attorney obtained an order for an award of attorney’s fees
under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(a)-(d), from this Court in the
amount of $4,100.00. (Dkt. 35) Plaintiff’s attorney received this payment.
After his claim was reconsidered by the Agency, Plaintiff’s claim for disability benefits
was approved June 6, 2016. (Plaintiff’s Exhibit B) Plaintiff has been awarded past-due Title II
benefits totaling $90,357.80. (Plaintiff’s Exhibit C)
The Social Security Act’s provisions governing fees for representation are found in 42
2
U.S.C. § 406; see Gisbrecht v Barnhart, 535 U.S. 789, 794 (2002) (reviewing history of attorney
fees under the Social Security Act). Section 406(a) governs fees for representing claimants in the
administrative process, so a federal court does not determine whether to award any fee for
representation under section 406(a). 42 U.S.C. § 406(a). Section 406(b) governs attorney fees for
successful litigation for benefits under Title II of the Social Security Act such as Disability
Insurance Benefits, 42 U.S.C. §§ 416(I), 423, and, pursuant to § 302 of Public Law 108-203, for
litigation for benefits under Title XVI of the Social Security Act or Supplemental Security
Income, 42 U.S.C. §§ 1382, 1382a. 42 U.S.C. § 406(b). Section 406(b)(1) provides:
Whenever a court renders a judgment favorable to a claimant . . . who was
represented before the court by an attorney, the court may determine and allow as
part of its judgment a reasonable fee for such representation, not in excess of 25
percent of the total of the past-due benefits . . . .
42 U.S.C. § 406(b)(1).
The court must review all fee requests under § 406(b). Congress intended such review not
to override the claimant and counsel’s fee arrangement but rather to act as an “independent
check” to ensure that the arrangement yielded a reasonable result in the particular case.
Gisbrecht, 535 U.S. at 807. “Congress has provided one boundary line: Agreements are
unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due
benefits.” Id. Within the 25% boundary, the attorney for the successful claimant must show that
the fee sought is reasonable for the services rendered. Id. In making this determination, the court
may consider the character of the representation and the results obtained, reducing an award if the
attorney is responsible for delay in the proceeding that had the effect of inflating past-due
benefits, or if the fee is so large in comparison to the amount of time counsel spent on the case
that the fee would constitute a windfall to the attorney. Id. at 808.
3
In the present case, Plaintiff’s attorney contends that the requested fee of $21,498.95 is
reasonable. This amount reflects a valid contract between Plaintiff and his counsel, the
substantial risk associated with this litigation and potential recovery, the results obtained for the
Plaintiff, the time Counsel expended on the matter and the required refund of the fee award
previously obtained under EAJA.
Plaintiff contracted with Plaintiff’s attorney to pay 25 percent of past due benefits without
limitation if the undersigned represented him before a federal court and obtained a favorable
outcome. (Plaintiff’s Exhibit A) After this litigation, Plaintiff received as past-due Title II
benefits $90,357.80, which, as noted above, was reduced by $4,362.00 due to Plaintiff’s receipt
of SSI benefits. (Plaintiff’s Exhibit C) Plaintiff’s attorney therefore moves that the Court approve
an overall award of $21,498.95—or 25 percent of the Plaintiff’s past-due benefits. This award is
within the statutory maximum of 25 percent of past due benefits and in accordance with what the
Plaintiff contracted to pay Counsel.
The Court agrees that the requested fee is reasonable because the requested fee reflects the
contingent nature of the recovery. Civil actions for Social Security claimants possess a substantial
risk of loss. Between 2005 and 2010, federal district courts affirmed approximately half of the
appealed administrate decisions denying such claimants benefits. See Aspects of Disability
Decision Making, Social Security Advisory Board, July 2012, Chart 65.2 It was also uncertain
that Plaintiff’s claim would be approved following a federal court remand. Id. at Chart 51.
Because Plaintiff’s attorney may only collect a 42 U.S.C. § 406(b) fee from those who ultimately
receive benefits, the risk associated with engaging in such litigation is significant.
Moreover, the requested fee is reasonable because Plaintiff ultimately recovered
4
approximately $90,357.80 in past-due benefits. Counsel’s requested fee—$21,498.95—is
considerably less than a typical contingent fee recovery. See Herbert M. Kritzer, The Wages of
Risk: The Returns of Contingency Fee Legal Practice, 47 DePaul L. Rev. 267, 285 (1998); cf.
Continental Illinois Securities Litigation, 962 F.2d 566, 572 (7th Cir. 1992) (Posner, J.) (“We
know that in personal-injury suits the usual range for contingent fees are between 33 and 50
percent”). Moreover, while Plaintiff’s attorney is seeking a fee solely from Plaintiff’s past-due
benefits, Plaintiff will receive much more due to Counsel’s efforts before this Court. He will
receive ongoing benefits until he dies, reaches retirement age, or becomes no longer disabled. He
will also be entitled to the value of health care benefits which accompany an award of benefits
under Title II. Thus, Counsel’s requested fee reasonably compensates him for the substantial
monetary and other benefits which resulted from this litigation.
Additionally, the requested fee also reflects the time and attention which Keller & Keller
LLP devoted to Plaintiff’s case before this Court. Counsel spent a total of 12.6 attorney hours on
the civil litigation and 20.3 hours of non-attorney time. (Plaintiff’s Exhibit D) The undersigned
law firm also expended 26.2 hours of attorney time and 17.2 hours of non-attorney time before
the Agency. (Plaintiff’s Exhibit E) If approved for the full amount of this request, Plaintiff’s
counsel has indicated that he will not request fees for work performed before the agency under §
406(a).
Such compensation in a contingency fee case is not “large in comparison to the amount of
time counsel spent on the case.” Gisbrecht, 35 U.S. at 808; Everroad v. Astrue, No. 4:06-cv-100DFH-WGH, 2009 WL 363646, at *2, *4 (S.D. Ind. Feb. 11, 2009) (approving hourly rate of
approximately $800); Anzalone v. Colvin, No. 11-cv-552, 2013 U.S. Dist. LEXIS 123793, at *5
5
(E.D. Wis. August 29, 2013) (approving hourly rate of $579); Stemper v. Astrue, No. 04-cv-838jcs, 2008 U.S. Dist. LEXIS 54951, at *1 (W.D. Wis. July 14, 2008) (approving hourly rate of
$666); Duke v. Astrue, No. 1:07-cv-00118, 2010 WL 3522572, at *3, *4 (N.D. Ind. Aug. 30,
2010) (approving award equivalent to an hourly rate of $549.14); Schimpf v. Astrue, No. 1:06CV-00018, 2008 WL 4614658, at *3 (N.D. Ind. Oct. 16, 2008) (approving award equivalent to
hourly rate of $583.50).
In the present case, Counsel obtained an order for an award of attorney’s fees under the
Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(a)-(d), from this Court in the amount of
$4,100.00 (Dkt. 35) This amount was received by Counsel and Counsel has indicated that it will
be refunded. Therefore, Plaintiff’s attorney has followed the terms of his agreement and the
EAJA statute and has reasonably attempted to reduce the portion of his fee which Plaintiff will
pay out of his past-due benefits.
Accordingly, for the reasons set forth above, Plaintiff’s attorney has demonstrated that the
requested 42 U.S.C. § 406(b) fee of $21,498.95 is reasonable and, therefore, his fee request will
be granted.
Conclusion
On the basis of the foregoing, Plaintiff’s Motion for Award of Attorney Fees [DE 36] as
adjusted by the Amended Motion for Award of Attorney Fees [DE 41], are hereby GRANTED.
Entered: August 23, 2016
s/ William C. Lee
William C. Lee, Judge
United States District Court
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?