Lopes v. Commissioner of Social Security
Filing
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OPINION AND ORDER GRANTING 31 Motion for Attorney Fees in the amount of $16,328.80. The court ORDERS that payment by the Commissioner in the amount of $16,328.80 be paid directly to the law firm of Keller & Keller, LLP, 2850 N. Meridian Street, Indianapolis, IN 46208. Signed by Judge Robert L Miller, Jr on 10/31/19. (ksp)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
KAREN E. LOPES,
Plaintiff
vs.
ANDREW SAUL, COMMISSIONER
OF SOCIAL SECURITY,
Defendant
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CAUSE NO. 3:17-CV-221 RLM-MGG
OPINION AND ORDER
Karen E. Lopes brought this action for judicial review after the
Commissioner of Social Security denied her application for disability insurance
benefits. This court reversed and remanded the claim for further proceedings.
Ms. Lopes ultimately prevailed and was awarded $80,832.40 in past-due
benefits. Ms. Lopes’s attorneys have received $3,881.30 for the services they
provided pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. §
2412(d). Attorney Matthew F. Richter’s motion for authorization of attorney fees
under 42 U.S.C. § 406(b) is now before the court. For the following reasons, the
court grants Mr. Richter’s motion.
An attorney who has successfully represented a claimant in federal court
can receive “a reasonable fee for such representation, not in excess of twentyfive percent of the total past-due benefits to which the claimant is entitled by
reason of such judgment.” 42 U.S.C. § 406(b)(1)(A); Gisbrecht v. Barnhart, 535
U.S. 789, 792 (2002). While fees may be awarded under both the EAJA and
Section 406(b), “an EAJA award offsets an award under Section 406(b).” Id. at
796.
Mr. Richter asks the court to authorize attorney fees in the amount of
$20,208.10. The proposed attorney fee award is within the parameters of §
406(b) and the contingent fee agreement between Ms. Lopes and Mr. Richter’s
law firm, Keller & Keller, LLP. The government doesn’t argue that Mr. Richter’s
request is unreasonable but recognizes that it is within the court’s discretion to
award the amount requested or reduce the fee award.
Ms. Lopes and Keller & Keller agreed to a contingent attorney fee of 25
percent. The court must decide whether the attorney fees yielded by the parties’
contingency fee agreement are reasonable. Gisbrecht v. Barnhart, 535 U.S. at
807. A court shouldn’t override the attorney-client contingency fee agreement
unless the resulting fee would be unreasonable. Id. at 808. A fee may be
unreasonable “[i]f the attorney is responsible for delay” that causes an
“accumulation of benefits during the pendency of the case in court” or the “the
benefits are large in comparison to the amount of time counsel spent on the
case.” Id.
Nothing in the record suggests Mr. Richter or his co-counsel at Keller &
Keller caused any delay in the adjudication of Ms. Lopes’s case, and the benefit
of their work is significant. Under the terms of their agreement, Ms. Lopes
agreed that Keller & Keller could elect to petition for up to 25 percent of all past
due benefits in the event of a favorable outcome. The sum of requested attorney
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fees, including the EAJA award, equates to an effective rate of $975.77 per
hour ($20,208.10/20.71). The proposed fee award is within the bounds of the
contingency fee agreement and falls within the range of what courts in this
district have deemed reasonable. See, e.g., Heise v. Colvin, No. 14-CV-739-JDP,
2016 WL 7266741 at *3 (W.D. Wisc. Dec. 15, 2016) (granting a fee request
equating to an effective rate of $1,100); Kolp v. Colvin, No. 12-CV-842, 2015
WL 4623645, at *1 (E.D. Wis. Aug. 3, 2015) (granting a fee request equating to
an effective rate of $1,118.44 an hour). Further, the award is reasonable in
light of the result achieved in this case and the contingent nature of the
recovery. Without the greater incentive for attorneys to take these cases
stemming from the potential for an enhanced fee payment, claimants who have
difficult cases and who cannot afford to guarantee payment might not be able
to secure representation. See McGuire v. Sullivan, 873 F.2d 974, 980 (7th Cir.
1989) (internal citations omitted).
Ms. Lopes received an award of $3,881.30 in attorney fees pursuant to
the EAJA. Mr. Richter asked the court to direct him to refund that amount to
plaintiff upon receipt of attorney’s fees under § 406(b). The court finds it more
efficient to offset the EAJA award from counsel’s requested fees. Mr. Richter’s
fee request in this action, $20,208.10, is accordingly offset by the EAJA award,
$3,881.30, for a total of $16,328.80.
For the foregoing reasons, the court GRANTS the motion for an award of
attorney’s fees under 42 U.S.C. § 406(b) [Doc. No. 34] and AWARDS fees to
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plaintiff's attorney Matthew F. Richter’s law firm, Keller & Keller, LLP, in the
amount of $16,328.80. The court ORDERS that payment by the Commissioner
in the amount of $16,328.80 be paid directly to the law firm of Keller & Keller,
LLP, 2850 N. Meridian Street, Indianapolis, IN 46208.
SO ORDERED.
ENTERED:
October 31, 2019
/s/ Robert L. Miller, Jr.
Judge, United States District Court
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