RYAN v. BERRYHILL

Filing 29

ORDER ON PLAINTIFF'S 25 MOTION FOR ATTORNEYS' FEES - For the reasons set forth above, the Court grants Plaintiff's § 406(b) motion for attorneys' fees, but at a reduced rate of $600 per hour. [Filing No. 25.] There fore, counsel is entitled to $10,920 in attorneys' fees for the 18.2 hours. The Commissioner is ordered to pay the amount from Plaintiff's past-due benefits directly to counsel. At that time, counsel should refund Plaintiff the $3,400 previously awarded EAJA fees. (See Order.) Signed by Magistrate Judge Tim A. Baker on 11/18/2020. (NAD)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MISTY R.,
Plaintiff,
v.
ANDREW M. SAUL,
Defendant.

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No. 1:18-cv-03277-TAB-TWP

ORDER ON PLAINTIFF'S MOTION FOR ATTORNEYS' FEES
I.

Introduction
Plaintiff Misty R.'s counsel filed the instant motion for attorneys' fees under 42 U.S.C. §

406(b) for her successful representation of Plaintiff in a Social Security disability appeal. [Filing
No. 25.] Counsel argues that $16,643.50 is a reasonable attorney fee. The Commissioner
contends that this award and its hourly rate of $914.47 is unreasonable, thus creating a windfall
for Plaintiff's counsel. [Filing No. 27.] As discussed below, Plaintiff's motion for attorneys' fees
is granted, but at a reduced rate.
II.

Background
On October 24, 2018, Plaintiff filed a complaint seeking to reverse the decision of the

Commissioner of the Social Security Administration denying her application for Social Security
disability benefits. [Filing No. 1.] On May 10, 2019, the parties filed a Joint Motion to Remand
[Filing No. 20.], which the Court granted. [Filing No. 21.] On December 19, 2019, following a
second administrative hearing, Plaintiff was approved for benefits. [Filing No. 24.] Under the
Equal Access to Justice Act, counsel was awarded attorneys' fees in the amount of $3,400.

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[Filing No. 24.]1 On August 24, 2020, counsel filed the instant motion for attorneys' fees
pursuant to 42 U.S.C. § 406(b) for her federal court representation of Plaintiff in the amount of
$16,643.50. [Filing No. 25.]
III.

Discussion
Under 42 U.S.C. § 406(b), a district court may grant "a reasonable fee for such

representation, not in excess of 25 percent of the total of the past-due benefits to which the
claimant is entitled" as part of a judgment in favor of the claimant in a disability benefit appeal.
42 U.S.C. § 406(b)(1)(A). The Court must review all fee requests under 42 U.S.C. § 406(b).
The Court acts "as an independent check, to assure that they yield reasonable results in particular
cases." Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002).
The SSA awarded Plaintiff $66,574 in past-due benefits. [Filing No. 25.] Counsel seeks
$16,643.50, an amount that is equal to 25 percent of the total past-due benefits. [Filing No. 25.]
Counsel argues that her fee request is reasonable because: (1) of the contingent fee agreement
she had with Plaintiff; (2) the requested fee is less than a typical contingent recovery fee; (3) she
dedicated a total of 57.95 hours to Plaintiff's case at the federal and administrative levels; and (4)
the requested fee results in a hypothetical hourly rate of $297.20, which is well within the range
typically approved in this circuit. [Filing No. 25, at ECF p. 3.] The Commissioner opposes
counsel's request for this amount. [Filing No. 27, at ECF p. 2.] While the Commissioner
acknowledges that 25 percent of Plaintiff's past-due benefits equates to the amount sought by
counsel, the Commissioner believes the amount requested results in an unreasonably high hourly
fee. The Court addresses each of these arguments in turn.

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Counsel states that those fees will be refunded to Plaintiff. [Filing No. 25, at ECF p. 5.]
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(1)

The contingency fee agreement

Plaintiff's counsel contends that she had a contingency fee agreement with Plaintiff,
which reflects a substantial risk of loss for both Plaintiff and counsel. [Filing No. 28, at ECF p.
4.] Plaintiff contracted to provide counsel with the statutory maximum of 25 percent of past-due
benefits. [Filing No. 28, at ECF p. 4.] In response, the Commissioner points out that Plaintiff's
counsel failed to provide the agreement with her motion for fees under 42 U.S.C. § 406(b).
[Filing No. 27, at ECF p. 2.] Counsel subsequently attached the agreement to Plaintiff's reply
brief. [Filing No. 28-1.] Counsel's request for fees aligns with that contingency agreement, and
the contingency agreement is within the parameters set forth in 42 U.S.C. § 406(b). Still, the
Court must review the outcome of any contingency fee agreement as an independent check for
its reasonableness. Gisbrecht, 535 U.S. 789, 796 (2002).
(2)

Less than typical fee

Counsel for Plaintiff argues that the requested fee is reasonable because it is less than a
typical contingent recovery fee, such as in personal injury cases. [Filing No. 25, at ECF p. 3.]
This argument is irrelevant. Rather, the issue is the reasonableness of the underlying fee
agreement, as discussed further below. Gisbrecht, 535 U.S. 808 (2002).
(3)

Hours at federal vs. administrative levels

Plaintiff's counsel contends that the requested fee reflects the time spent on Plaintiff's
case. Counsel certifies that she spent 57.95 hours in total on Plaintiff's case. [Filing No. 25.] In
support, counsel provided two records of her time. The first record covers counsel's work at the
administrative level, where she spent 39.75 hours on Plaintiff's case. [Filing No. 25-1.] The
second record totals 18.2 hours and appears to cover work performed at the federal level. [Filing
No. 25-2.] As the Commissioner notes, a § 406(b) motion limits an attorney to compensation for

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time worked at the federal level. See Culbertson v. Berryhill, __ U.S. __, 139 S. Ct. 517, 522
(2019) ("As presently written, the Social Security Act discretely addresses attorney's fees for the
administrative and judicial-review stages: § 406(a) governs fees for representation in
administrative proceedings; § 406(b) controls fees for representation in court.") (internal
citations quotation marks omitted). Accordingly, the Court's focus is on the number of federal
hours counsel spent on Plaintiff's case: 18.2. When dividing 25 percent of Plaintiff's past-due
benefits, $16,643.50, by the amount of time counsel spent, 18.2 hours, the effective hourly rate
would be $914.48.
(4)

Reasonableness of fee

Plaintiff's counsel argues that the rate—whether it be $297.20 or $914.47—is reasonable.
As stated above, the Court's role is to serve as an independent check on behalf of the claimant to
ensure that fee requests are reasonable. Gisbrecht, 535 U.S. at 796. Moreover, the district court
is to consider the following factors in making a reasonableness determination: (1) the quality of
the representation; (2) the results achieved; (3) any delay caused by the attorney that results in
the accumulation of benefits during the pendency of the case in court; and (4) whether the
benefits are large in comparison to the time the attorney spent on the case. Id. at 808.
The first three factors set out in Gisbrecht, are not at issue here. Plaintiff's counsel
achieved the results of the representation and the delays were minimal. The fourth factor,
whether the benefits are large in comparison to the time the attorney spent on the case, dooms
counsel's argument that the requested fee is reasonable.
As stated above, counsel's effective hourly rate would be $914.48. This is excessive.
This hourly rate "calls into question the bounds of reasonableness in this district." Cynthia L. v.
Saul, No. 1:17-cv-02192-JMS-TAB, 2019 WL 10060470, at *4 (S.D. Ind. Sept. 20, 2019). This

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Court has found that § 406(b) fee awards equivalent to hourly rates ranging from $400 to $600
are reasonable. See, e.g., Taylor v. Berryhill, No. 1:16-cv-03474-MJD-JMS, 2018 WL 4932042,
at *1-2 (S.D. Ind. Oct. 10, 2018) (approving an award equivalent to an hourly rate of $377.03);
Cynthia L. v. Saul, No. 1:17-cv-02192-JMS-TAB, 2019 WL 10060470, at *4 (approving an
award equivalent to an hourly rate of $604.80); Additionally, the Commissioner concedes that
$600 would be reasonable in light of other decisions in this district. [Filing No. 27.] For the
reasons set forth above, the Court in its discretion, finds $600 to be a reasonable fee for the time
counsel spent on this case. See also, Zimmerman v. Astrue, No. 1:08-cv-00228, 2011 WL
5980086, at *3 (N.D. Ind. Nov. 29, 2011) (approving an award equivalent to an hourly rate of
$410); Duke v. Astrue, No. 1:07-cv-00118, 2010 WL 3522572, at *3-4 (N.D. Ind. Aug. 30,
2010) (approving award equivalent to an hourly rate of $549.14); Schimpf v. Astrue, No. 1:06cv-00018, 2008 WL 4614658, at *3 (N.D. Ind. Oct. 16, 2008) (approving award equivalent to an
hourly rate of $583.50) . Accordingly, multiplying the amount of time counsel spent on
Plaintiff's case at the federal level (18.2 hours) by the more reasonable hourly rate of $600,
counsel is entitled to a § 406(b) fee award of $10,920.

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IV.

Conclusion
For the reasons set forth above, the Court grants Plaintiff's § 406(b) motion for attorneys'

fees, but at a reduced rate of $600 per hour. [Filing No. 25.] Therefore, counsel is entitled to
$10,920 in attorneys' fees for the 18.2 hours. The Commissioner is ordered to pay the amount
from Plaintiff's past-due benefits directly to counsel. At that time, counsel should refund
Plaintiff the $3,400 previously awarded EAJA fees.
Date: 11/18/2020

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

Distribution:
All ECF-registered counsel of record via email

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