Harris v. Commissioner of Social Security

Filing 41

OPINION AND ORDER: GRANTING 38 First MOTION for Attorney Fees under 42 U.S.C. § 406(b) by Plaintiff Tony B. Harris, in the amount of $15,516.25. Signed by Judge William C Lee on 2/23/2017. (lhc)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
TONY B. HARRIS,
Plaintiff,
v.
CAROLYN COLVIN, Acting
Commissioner of Social Security,
Defendant.

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CIVIL NO. 3:14cv1914

OPINION AND ORDER
This matter is before the court on a motion for an award of attorneys fees under 42 U.S.C.
§406(b), filed by the Plaintiff, Tony B. Harris, on December 12, 2016. The defendant
Commissioner filed a response on January 12, 2017, indicating no opposition to the motion.
Discussion
Plaintiff filed claims for Disability Insurance Benefits (DIB – Title II) on December 21,
2010. (Dkt. 12 at 142-48) Plaintiff’s claim was denied on March 22, 2011. Id. at 83-85. Plaintiff
filed a request for reconsideration on April 18, 2011, id. at 89-90, but was denied again on June
2, 2011. Id. at 91-97. Plaintiff requested an administrative hearing on July 5, 2011. Id. at 98-99.
On July 26, 2012, Plaintiff appeared in Valparaiso, Indiana, for a hearing before Administrative
Law Judge (ALJ) Edward Studzinski of the Office of Disability Adjudication and Review
(ODAR). Id. at 44-80. On November 15, 2012, ALJ Studzinski issued an unfavorable
determination. Id. at 23-43. Plaintiff filed a request for review with the Appeals Council, but the
Appeals Council denied the request on July 21, 2014. Id. at 1-9.
Plaintiff retained Keller & Keller LLP for representation on August 14, 2014. (Plaintiff’s
Exhibit A) Plaintiff agreed that “if any of my claim(s) progress to the U.S. Courts and is then

favorably decided, then my attorney may elect to motion the U.S. Courts to approve a fee of 25
percent of all past due benefits without limitation pursuant to 42 U.S.C. section 406(b) . . . .” Id.
at 1.
Plaintiff then timely filed this civil action on September 22, 2014. (Dkt. 1) On September
8, 2015, the undersigned issued an order to reverse and remand the case for further consideration
pursuant to sentence four of 42 U.S.C. § 405(g). (Dkt. 30) On December 8, 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 $4,416.50. (Dkt. 34)
Plaintiff’s attorney received this payment. After the claim was reconsidered by the agency,
Plaintiff’s claim for disability benefits was approved April 12, 2016. (Plaintiff’s Exhibit B)
Plaintiff has been awarded past-due benefits totaling $62,065.00. (Plaintiff’s Exhibit C)
The Social Security Act’s provisions governing fees for representation are found in 42
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. 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).
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.
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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.
Plaintiff’s attorney contends, and the Commissioner does not dispute, that the requested
fee of $15,516.25 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.
As noted, 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 $62,065.00. (Plaintiff’s Exhibit C) Plaintiff’s attorney therefore requests that the
Court approve an overall award of $15,516.25 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.
Also as noted, 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
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$4,416.50. (Dkt. 31) This amount was received by Counsel and Counsel states this amount will
be refunded upon receipt of the 406(b) award.
Accordingly, as Plaintiff’s attorney has followed the terms of his agreement and the
EAJA statute, this court will grant the fee petition.
Conclusion
On the basis of the foregoing, Plaintiff’s motion for an award of attorney fees pursuant to
42 U.S.C. § 406(b) [DE 38], in the amount of $15,516.25 is hereby GRANTED.

Entered: February 23, 2017.

s/ William C. Lee
William C. Lee, Judge
United States District Court

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