VAN NEVEL v. SOCIAL SECURITY ADMINISTRATION

Filing 38

ORDER granting IN PART Plaintiff's 33 Motion for Attorney Fees. See Order. Signed by Magistrate Judge Tim A. Baker on 9/12/2016. (SWM)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
JODI VAN NEVEL,
Plaintiff,
vs.
CAROLYN W. COLVIN Acting
Commissioner of Social Security,
Defendant.

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No. 1:14-cv-01292-TAB-SEB

ORDER ON PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
The only remaining issue in this case is the amount of fees the Court can award Plaintiff’s
attorney from her past-due Supplemental Security Income benefits. The parties otherwise
stipulate to Plaintiff’s motion for attorney’s fees. As explained below, the Court grants
Plaintiff’s motion [Filing No. 33] in part.
For a Social Security plaintiff, section 406(b)(1) limits attorney’s fees to 25 percent of
past-due benefits. 42 U.S.C. § 406(b)(1). In this case, Plaintiff’s past-due benefits are reportedly
$28,894.98 from SSI benefits, and $48,478 from Disability Insurance Benefits. [Filing No. 33-1,
at ECF p. 2] Accordingly, Plaintiff asks the Court for an award of $19,343.24 in attorney’s fees,
which is 25 percent of $77,372.98, the gross amount of past-due benefits.
The Commissioner agrees that the award should be 25 percent of Plaintiff’s past-due
benefits. The parties agree that $12,119.50 is the correct amount of attorney’s fees for the Court
to award Plaintiff’s counsel from her past-due DIB. The Commissioner only takes issue with
using the past-due SSI benefits amount of $28,894.98 to calculate attorney’s fees. The
Commissioner explains that once the Court enters this order and Plaintiff receives her past-due
DIB, the agency will apply windfall offset provisions to reduce the amount of Plaintiff’s SSI

benefits. [Filing No. 37, at ECF p. 2.] The Commissioner argues that if the Court awards
attorney’s fees based on the current gross amount of Plaintiff’s past-due benefits, that award will
exceed the 25 percent cap upon adjustment. Instead, the Commissioner contends that the
attorney’s fees from SSI benefits should be calculated after entry of this order, and once the
windfall-offset provisions are applied.
The Commissioner proposes that this Court award Plaintiff’s counsel $12,119.50 in
attorney’s fees now, and provide for a later-calculated award of 25 percent of past-due SSI
benefits. The Commissioner asks that the Court not identify a specific amount, but provide that
the amount cannot exceed $7,223.74. The Commissioner cites the interest of judicial and
administrative efficiency as the reason for her position. Plaintiff did not object. The
Commissioner’s proposal is reasonable and abides by the 25 percent cap provided in § 406(b).
Accordingly, the Court grants Plaintiff’s motion for attorney’s fees, consistent with the
Commissioner’s rubric.
The Commissioner also asks that Plaintiff’s counsel refund to Plaintiff the $6,118.50 in
attorney’s fees previously received under the Equal Access to Justice Act. Plaintiff’s counsel
can pursue and be awarded fees under both § 406(b) and EAJA. Gisbracht v. Barnhart, 535 U.S.
789, 796 (2002). However, if the Court awards fees under both § 406(b) and EAJA, counsel can
only keep the larger of the two and must return the lesser amount to Plaintiff. Mathews-Sheets v.
Astrue, 653 F.3d 560, 562 (7th Cir. 2011). As Plaintiff’s counsel will receive both, the EAJA fee
should be refunded to Plaintiff. Even without including the unspecified amount of attorney’s
fees for past-due SSI benefits, the § 406(b) award is greater than the EAJA award. Therefore,
Plaintiff’s attorney must refund the $6,118.50 EAJA award to Plaintiff.

Accordingly, the Court grants Plaintiff’s motion for attorney’s fees [Filing No. 33] in
part. Plaintiff’s counsel is awarded $12,119.50 in attorney’s fees from Plaintiff’s past-due DIB.
Following the agency’s application of windfall-offset provisions, Plaintiff’s counsel is
additionally awarded a fee equal to 25 percent of Plaintiff’s past-due SSI benefits, not exceeding
$7,223.74. Plaintiff’s counsel will refund the $6,118.50 previously received under EAJA to
Plaintiff, following receipt of all the fees provided for in this order.
Date: 9/12/2016

_______________________________
Tim A. Baker
United States Magistrate Judge
Southern District of Indiana

Distribution:
Brian J. Alesia
OFFICE OF REGIONAL CHIEF COUNSEL FOR SOCIAL SECURITY
[e-mail]
Jonelle L. Redelman
REDELMAN LAW
[e-mail]
Kathryn E. Olivier
UNITED STATES ATTORNEY'S OFFICE
[e-mail]
Thomas E. Kieper
UNITED STATES ATTORNEY'S OFFICE
[e-mail]