Nelson, Jeannene v. Colvin, Carolyn

Filing 32

ORDER granting 28 Motion for Attorney Fees. Plaintiff's Counsel awarded attorney fees in the amount of $5,497.25. Signed by District Judge James D. Peterson on 10/1/18. (jat)

16-636IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

JEANNENE LOUISE NELSON,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,

ORDER
14-cv-893-jdp
16-cv-636-jdp

Defendant.
Plaintiff Jeannene Louise Nelson filed these two lawsuits seeking review of
administrative decisions denying her request for disability benefits under the Social Security
Act. The cases had a long history, but Nelson ultimately prevailed. Her attorney now weeks a
representative fee award, which the Commissioner does not oppose.
On February 12, 2016, the court reversed and remanded the Commissioner’s initial
decision denying her application for disability benefits. No. 14-cv-903, Dkt. 18.1 The parties
stipulated to and the court granted an award of plaintiff’s attorney fees in the amount of $7,100
under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. No. 14-cv-903, Dkt. 26. On
remand, the Commissioner again denied plaintiff’s disability benefits application, but the
parties jointly moved to reverse this decision under sentence four of section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g). Dkt. 17. The parties stipulated to and the court granted
another EAJA fee award to plaintiff’s attorney in the amount of $5,200. Dkt. 25. On remand,
after further administrative proceedings, the Commissioner awarded plaintiff $59,949 in past-

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Unless otherwise noted, docket citations in this order refer to the 2016 case, No. 16-cv-636.

due DIB benefits. Both sets of EAJA fees were seized by the United States Department of the
Treasury for payment of non-tax federal debt. See Dkt. 28-5 and Dkt. 28-6.
Nelson’s attorney, Dana Duncan, moves for a representative fee award in the amount
of $14,987.25 under 42 U.S.C. § 406(b). Dkt. 28. Plaintiff signed a contingent fee contract
and agreed to allow her attorney to keep the greater of 25% of any past-due benefits awarded
or the EAJA fee. Dkt. 28-1. Duncan expended a considerable amount of time handling
administrative proceedings, and he has filed a fee petition with the Administrative Law Judge
seeking $9,500 in administrative fees. This leaves $5,497.25 in fees that Duncan now seeks
from the court. The Commissioner does not oppose the award.
Section 406(b) allows the court to 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). 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.”). When evaluating a representative fee for reasonableness,
“the court may consider the character of the representation and the results obtained, reducing
an award if . . . the fee is so large in comparison to the amount of time counsel spent on the
case such that the fee would constitute a windfall to the attorney.” Koester v. Astrue, 482 F.
Supp. 2d 1078, 1081 (E.D. Wis. 2007) (citing Gisbrecht, 535 U.S. at 808). “In determining
what is a reasonable fee, the court should consider: the time and labor required; the skill
required; whether the fee was contingent or fixed; the amount involved and the result attained;
the attorney’s experience, reputation, and ability; and awards in similar cases.” Hodges-Williams

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v. Barnhart, 400 F. Supp. 2d 1093, 1099 (N.D. Ill. 2005) (citing McGuire, 873 F.2d at 979,
983).
Here, plaintiff’s attorney represents that his team spent 47.10 hours litigating before
this court in the 2014 case (34.25 hours in attorney time, 12.85 hours in paralegal and
administrative time), Dkt. 28-3, and 34.95 hours litigating before this court in the 2016 case
(24.80 hours in attorney time, 10.15 hours in paralegal and administrative time), Dkt. 28-4.
In both cases, Duncan filed and briefed motions for summary judgment and was successful in
obtaining a remand. And Duncan ultimately obtained a favorable result for Ms. Nelson.
The court notes that the contingency fee here is equivalent to an attorney compensation
rate of approximately $92.93 per hour ($5,487.25 for 59.05 hours of work). This hourly rate
is well below many section 406(b) awards approved by courts in this circuit. See, e.g., Moore v.
Comm’r of Soc. Sec., No. 1:14-cv-160-SLC, 2017 WL 3588066, at *3 (N.D. Ind. Aug. 21, 2017)
(awarding $5,978.30 for 31.30 hours of attorney work); Koester v. Astrue, 482 F. Supp. 2d,
1078, 1081–83 (E.D. Wis. 2007) (awarding $16,890 for 38.30 hours of attorney work).
Duncan fully litigated plaintiff’s case, he obtained favorable results for his client, and the
contingent fee agreement supports the requested award. 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”).

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ORDER
IT IS ORDERED that plaintiff’s attorney’s unopposed petition for attorney fee
pursuant to § 206(b)(1), Dkt. 28, is GRANTED. The court approves the representative fee
award of $5,497.25.
Entered October 1, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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