Hartman v. Commissioner of Social Security
AMENDED OPINION AND ORDER: The Court GRANTS the Plaintiff's Unopposed Motion for Approval of Attorney Fees Pursuant to 42 U.S.C.A. Section 406(b) 27 and AWARDS attorney's fees under 42 U.S.C. § 406(b) in the amount of $22,515.63. The Court ORDERS the Plaintiff's attorney to refund to the Plaintiff the $7,500.00 in EAJA fees previously awarded in this case. Signed by Judge Theresa L Springmann on 4/28/2021. (mrm)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION AT LAFAYETTE
PAMELA RAE HARTMAN,
CAUSE NO.: 4:19-CV-26-TLS
ANDREW M. SAUL, Commissioner of the
Social Security Administration,
AMENDED OPINION AND ORDER1
This matter is before the Court on the Plaintiff’s Unopposed Motion for Approval of
Attorney Fees Pursuant to 42 U.S.C.A. Section 406(b) [ECF No. 27], filed on April 19, 2021.
For the reasons stated below, the Plaintiff’s Motion is GRANTED.
On April 1, 2015, the Plaintiff filed an application for disability insurance benefits,
alleging disability beginning on July 7, 2014. June 10, 2020 Op. & Order 1, ECF No. 18. After
the Administrative Law Judge issued an unfavorable decision, the Plaintiff filed a Complaint in
this Court on March 15, 2019 [ECF No. 1]. On June 10, 2020, the Court reversed and remanded
this case for further proceedings. June 10, 2020 Op. & Order. Ultimately, the Social Security
Administration issued a Notice of Award [ECF No. 27-1] awarding the Plaintiff past-due
benefits, twenty-five percent of which was withheld for the payment of attorney fees in the
amount of $32,515.63. See Notice of Award 4, ECF No. 27-1.
This Opinion and Order is amended to correct the amount of attorney fees awarded in the Conclusion
from $22,525.63 to $22,515.63.
A different attorney representing the Plaintiff at the administrative level has requested
attorney fees from the Administration in the amount of $10,000.00 under 42 U.S.C. § 406(a),
which would be paid from the twenty-five percent withheld. In the instant motion, the Plaintiff’s
attorney requests an award of attorney fees under 42 U.S.C. § 406(b) in the remaining amount of
$22,515.63. Pl.’s Mot. 1, ECF No. 27. In the retainer agreement between the Plaintiff and her
attorney, the Plaintiff agreed to pay her attorney twenty-five percent of all past-due benefits. See
Retainer and Fee Agreement for Federal Court Representation, ECF No. 27-2. Counsel was
previously awarded $7,500.00 in attorney fees pursuant to the Equal Access to Justice Act
(EAJA), which counsel will refund to the Plaintiff if fees are awarded under § 406(b). See Pl.’s
Mot. ¶ 6, ECF No. 27; see also Sept. 22, 2020 Order, ECF No. 26.
The Plaintiff’s counsel, subject to refunding $7,500 in EAJA fees, requests $22,515.63 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). 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. § 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. 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. Id. 808. In addition, 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 in attorney’s fees is consistent with the contingency
agreement. In addition, counsel has requested only $22,515.63 in attorney fees under § 406(b),
which is less than the twenty-five percent permitted by the agreement, so that the § 406(b) fee in
combination with the $10,000.00 § 406(a) fee requested by counsel at the administrative level
will not exceed the twenty-five percent withheld in the amount of $32,515.63. Pl.’s Mot. ¶ 5. The
Plaintiff’s counsel represents that 36.8 attorney hours were spent in federal court on this case,
resulting in an effective hourly rate of $611.84. See id. at ¶ 9. Such an hourly rate is reasonable
given the contingent nature of this case. See Osmun v. Comm’r of Soc. Sec., 1:16-CV-273, 2020
WL 7334271, *3 (N.D. Ind. Dec. 14, 2020) (effective hourly rate of $525); Niebuhr v. Saul, 18CV-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’s fees with hourly rates ranging from $400 to $1,500).
For the reasons stated above, the Court GRANTS the Plaintiff’s Unopposed Motion for
Approval of Attorney Fees Pursuant to 42 U.S.C.A. Section 406(b) [ECF No. 27] and AWARDS
attorney’s fees under 42 U.S.C. § 406(b) in the amount of $22,515.63. The Court ORDERS the
Plaintiff’s attorney to refund to the Plaintiff the $7,500.00 in EAJA fees previously awarded in
SO ORDERED on April 28, 2021.
s/ Theresa L. Springmann
JUDGE THERESA L. SPRINGMANN
UNITED STATES DISTRICT COURT
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