Zenner v. Commissioner of Social Security

Filing 38

OPINION AND ORDER: The Court GRANTS the Plaintiff's Attorney's Amended Motion for an Award of Attorneys Fees Under 42 U.S.C. 406(b) ECF No. 37 and DENIES as moot the Plaintiff's Attorney's Motion for an Award of Attorneys Fees Under 42 U.S.C. 406(b) ECF No. 35 . The Court AWARDS attorney's fees under 42 U.S.C. § 406(b) in the amount of $29,999.00 and ORDERS the Plaintiff's attorney to refund the $4,700.00 in EAJA fees previously awarded in this case. Signed by Chief Judge Theresa L Springmann on 4/8/20. (nal)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE

JOSEPH F. ZENNER,
Plaintiff,
v.

CAUSE NO.: 4:16-CV-51-TLS-JEM

ANDREW M. SAUL, Commissioner of the
Social Security Administration,
Defendant.
OPINION AND ORDER
This matter is before the Court on the Plaintiff’s Attorney’s Amended Motion for an Award
of Attorneys Fees Under 42 U.S.C. 406(b) [ECF No. 37], filed on September 25, 2019. For the
reasons stated below, this Motion is GRANTED.
BACKGROUND
On February 12, 2013, the Plaintiff filed his Title II application for a period of disability and
disability insurance benefits, as well as a Title XVI application for supplemental security income,
alleging disability beginning on April 11, 2011. January 16, 2018 Op. & Order 1, ECF No. 31. The
Social Security Administration denied his initial application and his claim for reconsideration. Id. at
1–2. An ALJ also denied the Plaintiff’s application, finding he was not disabled prior to his date last
insured. Id. at 2. 
On June 27, 2016, the Plaintiff filed a Complaint [ECF No. 1] in which he sought review of
the denial of his benefits. On January 16, 2018, the Court reversed and remanded this case for
further proceedings. January 16, 2018 Op. & Order 10. Ultimately, the Social Security

Administration issued a Notice of Award [ECF No. 35-3] in which it stated that the Plaintiff is
entitled to past-due benefits in the amount of $119,996.00. See Notice of Award 5, ECF No. 35-3.
The Plaintiff filed a Motion for an Award of Attorneys Fees Under 42 U.S.C. 406(b) [ECF
No. 35] on September 16, 2019, and an Amended Motion for an Award of Attorney’s Fees Under
42 U.S.C. 406(b) [ECF No. 37] on September 25, 2019, requesting the Court award Plaintiff’s
counsel $29,999.00 in attorney’s fees. This amount is based on the Retainer Agreement between the
Plaintiff and his attorneys, where the Plaintiff agreed to pay his attorneys twenty-five percent of all
past-due benefits. See Retainer Agreement for Legal Services 1, ECF No. 35–1. The Court
previously awarded counsel $4,700 in fees pursuant to the Equal Access to Justice Act (EAJA), see
March 30, 2018 Op. & Order, ECF No. 34, and counsel indicates that this amount will be refunded
if fees are awarded pursuant to 42 U.S.C. § 406(b). See Pl.’s Am. Mem. Supp. of Mot. Award
Attorney’s Fees 6, ECF No. 37-1. The Defendant did not respond to the Plaintiff’s motions.
ANALYSIS
Plaintiff’s counsel, subject to refunding $4,700.00 in EAJA Fees, requests $29,999.00 in
attorney’s 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 42 U.S.C § 406(b).” Hoover v. Saul, No. 1:16-CV-427, 2019
WL 3283047, at *1 (N.D. Ind. July 22, 2019) (citing Culberston v. Berryhill, 139 S. Ct. 517, 520
(2019)). “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 pastdue benefits to which the social security claimant is entitled.” Id. (citing 42 U.S.C. § 406(b)(1)(A);
Gisbrecht v. Barnhardt, 535 U.S. 789, 792 (2002)). “The reasonableness analysis considers the
‘character of the representation and the results the representative achieved.’” Id. at *2 (citing

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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. Gisbrecht, 535 U.S. at 808. Further, “an award of EAJA fees under 42 U.S.C. § 2412 offsets
an award under § 406(b).” Hoover, 2019 WL 3283047, at *1 (citing Gisbrecht, 535 U.S. at 796).
In this case, the requested amount in attorney’s fees is consistent with the contingency
agreement. Retainer Agreement for Legal Services 1. Additionally, the amount requested, when
considered with counsel’s representation that “the undersigned law firm will not request any
additional fees for work performed before the agency under § 406(a),” is reasonable. See Pl.’s Am.
Mem. Supp. of Mot. Award Attorney’s Fees 5. Counsel indicates that Keller & Keller LLP spent
25.7 attorney hours on this case, which results in an effective hourly rate of $1,167.28. See
Itemization of Time, ECF No. 35-4. Such an hourly rate, although perhaps on the high-end, is
reasonable given the contingent nature of this case. See Heise v. Colvin, No. 14-CV-739, 2016 WL
7266741, at *2 (W.D. Wis. Dec. 15, 2016) (“This results in an effective hourly rate of just over
$1,100, appropriately high to reflect the risk of non-recovery in social security cases . . . .”); Kolp v.
Colvin, No. 12-C-842, 2015 WL 4623645, at * 1 (E.D. Wis. Aug. 3, 2015) (approving an hourly
rate of $1,118.44 per hour); see also Vujnovich v. Colvin, No. 2:10-CV-043, 2013 WL 1343553, at
*3 (N.D. Ind. Apr. 1, 2013) (“Further, this district has awarded awards up to $1,000 per hour.”
(citing Szanyi v. Astrue, No. 2:04-CV-412 (N.D. Ind. Nov. 14, 2007))).
CONCLUSION
For the reasons stated above, the Court GRANTS the Plaintiff’s Attorney’s Amended
Motion for an Award of Attorneys Fees Under 42 U.S.C. 406(b) [ECF No. 37] and DENIES as
moot the Plaintiff’s Attorney’s Motion for an Award of Attorneys Fees Under 42 U.S.C. 406(b)
[ECF No. 35]. The Court AWARDS attorney’s fees under 42 U.S.C. § 406(b) in the amount of

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$29,999.00. The Court ORDERS the Plaintiff’s attorney to refund the $4,700.00 in EAJA fees
previously awarded in this case.
SO ORDERED on April 8, 2020.
s/ Theresa L. Springmann
CHIEF JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT

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