Wellnitz, Kimberly v. Colvin, Carolyn

Filing 21

ORDER granting 19 Motion for Attorney Fees Pursuant to 42 U.S.C. 406(b)(1). Plaintiff Kimberly Wellnitz's attorney awarded attorney fees in the amount of $17,555.20. Signed by District Judge James D. Peterson on 8/18/2017. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

KIMBERLY A. WELLNITZ,
Plaintiff,
v.

ORDER

NANCY A. BERRYHILL,
Acting Commissioner of Social Security,

15-cv-90-jdp

Defendant.
On March 14, 2016, the court reversed and remanded the Commissioner’s decision
denying plaintiff Kimberly A. Wellnitz’s application for disability benefits. Dkt. 14. The court
awarded plaintiff’s attorney fees in the amount of $6,726 under the Equal Access to Justice Act
(EAJA), 28 U.S.C. § 2412. Dkt. 17. On remand, the Administration awarded plaintiff $66,485
in past-due benefits. Dkt. 19-1, at 3. It also awarded plaintiff’s two minor children $16,944
each in past-due benefits. Id. at 13, 19. It then approved payment of $6,000 in fees for
plaintiff’s attorney’s representation at the administrative level. Dkt. 19-2.
Now plaintiff’s attorney petitions the court for a representative fee award of
$17,555.20, under 42 U.S.C. § 406(b). Plaintiff signed a contingent fee contract and agreed
to pay her attorney “twenty-five percent . . . of the past-due benefits” awarded to her and her
family. Dkt. 19-3, at 1. The Commissioner has indicated that she does not oppose the award.
Under § 406(b), the court may award a claimant’s attorney a representative fee for his
or her work before the court. This section of the Social Security Act provides that “a prevailing
claimant’s fees are payable only out of the benefits recovered; in amount, such fees may not
exceed 25 percent of past-due benefits.” Gisbrecht v. Barnhart, 535 U.S. 789, 792 (2002).

Plaintiff’s attorney must demonstrate that within the 25 percent cap, the requested fee is
reasonable. Id. at 807, 809; see also McGuire v. Sullivan, 873 F.2d 974, 980 (7th Cir. 1989) (“A
court may award a fee up to that provided in the contract so long as the court has reviewed its
reasonableness.”).
This court considers only the amount of time a plaintiff’s attorney spent litigating the
case before this court when evaluating a representative fee for reasonableness. This is the
unusual case in which the requested fee is clearly reasonable in light of the work performed
before the court. Plaintiff’s attorney thoroughly briefed a well-reasoned motion for summary
judgment and provided persuasive arguments in support of remand. And plaintiff’s attorney
obtained favorable results. The requested fee is the 25 percent authorized by the contingent
fee contract, when considering the $6,000 already awarded by the Administration. (Actually,
for reasons not apparent, the amounts withheld are slightly less than 25 percent of the total
benefits.) And it is proportional to the amount of time and effort that plaintiff’s attorney put
into the case, as evidenced by the briefing filed with the court. The court will grant the
unopposed petition for the requested attorney fee. See Kopulos v. Barnhart, 318 F. Supp. 2d
657, 669 (N.D. Ill. 2004) (awarding the requested representative fee because “it is consistent
with the Contract entered into between Petitioner and Plaintiff, it is consistent with the 25%
statutory cap for SSA fees, and the Commissioner has no objection to the amount of the SSA
award”).
As plaintiff’s attorney acknowledges, this award requires plaintiff’s attorney to return
the previously awarded $6,726 EAJA fee award to plaintiff. When an attorney receives fees for
the same work under both § 406(b) and the EAJA, the attorney must return the smaller fee to
plaintiff; the EAJA fee award “offsets” the § 406(b) award. Gisbrecht, 535 U.S. at 796.

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ORDER
IT IS ORDERED that plaintiff’s attorney’s unopposed petition for attorney fees under
§ 406(b), Dkt. 19, is GRANTED. The court approves the representative fee award of
$17,555.20.
Entered August 18, 2017.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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