Driver, Melissa v. Colvin, Carolyn

Filing 24

ORDER granting in part 21 Motion for Attorney Fees. Dana Duncan awarded attorney fees in the amount of $10,786.25. Signed by District Judge Barbara B. Crabb on 9/28/2017. (voc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - MELISSA DRIVER,
OPINION and ORDER
Plaintiff,
16-cv-151-bbc
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Plaintiff Melissa Driver filed this lawsuit in 2016, seeking review of an administrative
decision that denied her request for disability benefits under the Social Security Act. After
plaintiff filed a motion for summary judgment, the parties agreed to a remand for further
proceedings before the administrative law judge. After I granted the motion to remand, the
parties stipulated to an award under the Equal Access to Justice Act of $6,280.47 in attorney
fees for plaintiff’s attorney, Dana Duncan, for the proceedings up until that time. Dkt.
##13 and 18. However, Duncan did not receive those fees, as they were taken to offset
plaintiff’s pres-existing student loan debts.

On remand, an administrative law judge

concluded that plaintiff was disabled and entitled to past-due benefits of $43,145.00.
Now plaintiff’s attorney, Dana Duncan, seeks an award of attorney fees of
$11,213.00, under 42 U.S.C. § 406(b). Dkt. #21. Duncan seeks $10,786.25, which is 25
percent of plaintiff’s past-due benefits award of $43,183.50, in accordance with § 406(b)
and the contingency agreement signed by plaintiff. He seeks an additional $426.75, which

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is 25 percent of the $1,707.00 in supplemental security income that plaintiff received
between August 2012 and December 2012. The commissioner does not oppose Duncan’s
request for $10,786.25, but objects to the additional $426.75. For the reasons below, I am
awarding Duncan $10,786.25 in attorney fees.

OPINION
Under 42 U.S.C. § 406(b), the court may award a prevailing plaintiff’s attorney a
reasonable fee, but no greater than 25 percent of past-due benefits. Gisbrecht v. Barnhart,
535 U.S. 789, 792 (2002). 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 [contingency-fee] contract so
long as the court has reviewed its reasonableness.”). When evaluating a request for fees
under § 406(b) for reasonableness, a court may consider "the character of the representation
and the results the representative achieved.” Gisbrecht, 535 U.S. at 808. In Gisbrecht, the
Court identified two instances in which a fee reduction would be appropriate. First, “[i]f the
attorney is responsible for delay, . . . a reduction is in order so that the attorney will not
profit from the accumulation of benefits during the pendency of the case in court.” Id.
Second, if the benefits are large in comparison to the amount of time counsel spent on the
case, a downward adjustment is similarly in order. Id. Courts in this circuit have considered
factors such as the attorney’s experience, reputation and ability as well as awards in similar
cases. Westlund v. Berryhill, No. 15-cv-450-jdp, 2017 WL 2389724, at *1 (W.D. Wis. June

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1, 2017) (citing Hodges-Williams v. Barnhart, 400 F. Supp. 2d 1093, 1099 (N.D. Ill. 2005),
and McGuire, 873 F.2d at 979, 983)).
As an initial matter, I agree with the commissioner that Duncan is not entitled to
receive a payment of $426.75 from plaintiff’s 2012 supplemental security income award.
In some cases, counsel can be awarded fees based on the supplemental security income a
claimant receives during the five-month period in which the claimant is waiting for disability
benefits. Here, however, plaintiff was entitled to disability benefits in July 2011, before she
became entitled to supplemental security income in August 2012. Thus, there were no
months in which plaintiff was entitled to any supplemental security income not offset by the
disability insurance benefits in the same month under the windfall provision of 42 U.S.C.
§ 1320a-6(a). Duncan is not entitled to recover fees based on both awards.
Turning to whether Duncan’s request for $10,786.25 is reasonable, I note that
Duncan includes time spent in the administrative proceedings in his fee requests. As has
been explained repeatedly to Duncan, § 406(b) applies only to attorney fees related to court
proceedings. E.g, Beach v. Berryhill, No. 14-cv-857-bbc, 2017 WL 3275546, *2 (W.D. Wis.
Aug. 1, 2017) (“It is unclear why, nine years after this court held otherwise, Duncan
continues to try to use § 406(b) to obtain fees for time spent in administrative
proceedings.”); Heise v. Colvin, No. 14-cv-739-jdp, 2016 WL 7266741, at *2 (W.D. Wis.
Dec. 15, 2016) (Peterson, J.) (“[U]nder § 406 each tribunal may award fees only for the
work done before it[,] . . . [s]o I will limit my reasonableness evaluation to Duncan's work
before this court, and he can pursue the rest of his contingency fee from the

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Commissioner.”) (citations and internal quotations omitted); Stemper v. Astrue, No.
04-cv-838-jcs, 2008 WL 2810589, at *1 (W.D. Wis. July 14, 2008) (Crabb, J.) (Ҥ 406(b)
governs fees for representation in court and not in the administrative proceedings.”).
Accordingly, I am disregarding Duncan’s records and arguments relating to time spent at the
administrative level.
Duncan’s records show that he spent 22.80 hours on matters related to court
proceedings, including the preparation of a motion for summary judgment, and his paralegal
spent another 22.15 hours on those matters. Dkt. #21-5. Although it appears to be an
open question in this circuit whether paralegal time may be considered in assessing the
reasonableness of a fee request under § 406(b), I see no reason to exclude it. Richlin
Secretary Service Co. v. Chertoff, 553 U.S. 571, 581 (2008) (reasonable attorney fees under
Equal Access to Justice Act includes paralegal time); Missouri v. Jenkins, 491 U.S. 274, 285
(1989) (reasonable attorney fees under 42 U.S.C. § 1988 includes paralegal time). Awarding
Duncan $10,786.25 for this combined time would be the equivalent of a rate of
approximately $325 an hour for Duncan and $150 an hour for his paralegal. In light of
Duncan’s experience, the risk he incurred and the amounts awarded by other courts in
similar cases in both this court, e.g., Stemper, 2008 WL 2810589, at *2 (approving effective
rate of $666), and the courts cited in Duncan’s brief, I conclude that the amount is
reasonable.

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ORDER
IT IS ORDERED that Dana Duncan’s motion for attorney fees, dkt. #21, is
GRANTED IN PART. Duncan is awarded $10,786.25 in fees under 42 U.S.C.§ 406(b).
Entered this 28th day of September, 2017.
BY THE COURT:
/s/
____________________
BARBARA B. CRABB
District Judge

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