Knope, Aaron v. Berryhill, Nancy

Filing 22

ORDER granting 20 Motion for Attorney Fees. Attorney Curtiss Lein awarded attorney fees in the amount of $15,343.25. Counsel is directed to refund to plaintiff the amount of the EAJA fee, $4001.11, not later than 11/6/2018. Signed by Magistrate Judge Stephen L. Crocker on 9/7/2018. (arw)

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

AARON KNOPE,
Plaintiff,

ORDER

v.
17-cv-57-slc
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.
_________________________________________________________________________________________
On July 5, 2017, the court granted the parties’ joint motion to remand this case for further
proceedings before an administrative law judge, pursuant to sentence four of 42 U.S.C. § 405(g). See
dkts. 11 & 12. On September 29, 2017, the court accepted the parties’ stipulation on fees under the
Equal Access to Justice Act and awarded plaintiff attorneys’ fees in the amount of $4,001.11. See
dkts. 14-19. After further administrative proceedings, the Commissioner awarded plaintiff benefits,
including $85,737.00 in past-due benefits. Plaintiff’s lawyer, Curtiss Lein, now seeks approval under
42 U.S.C. § 406(b) of fees in the amount of $15,343.25, pursuant to his 25% contingency fee
agreement with plaintiff.1 Dkt. 20.
An attorney who succeeds in obtaining benefits for a social security claimant may recover fees
pursuant to 42 U.S.C. § 406. Section 406(a) governs fees for representation in administrative
proceedings before the Social Security Administration (“SSA”); § 406(b) controls fees for
representation in federal court. Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002). The statute
provides for a “reasonable fee” not to exceed 25% of the past-due benefits awarded to the claimant.
Id. at 795 (citing 42 U.S.C. § 406(b)(1)(A)). Such fees are deducted from the claimant's retroactive
benefits; they do not constitute an award against the government. Id. Where, as here, the attorney

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This amount is less than 25% of plaintiff’s past-due benefits because it is adjusted to reflect a $6,000
payment that Lein already received for his work at the administrative level under 42 U.S.C. § 406(a).

was previously awarded fees from the government under the EAJA, the EAJA award offsets the
allowable fee under § 406(b). Id. at 796. Thus, where attorney’s fees are awarded under both
§ 406(b) and the EAJA, the attorney is entitled to keep the larger fee but must return the smaller fee
to the claimant. Id.
In Gisbrecht, the Supreme Court found nothing in the text or history of § 406(b) to suggest
that Congress intended to displace contingent-fee agreements “as the primary means by which fees
are set for successfully representing Social Security benefits claimants in court,” but only that it
wanted courts to serve as “an independent check” to ensure that such agreements “yield reasonable
results in particular cases.” Id. In assessing reasonableness, lower courts should not use the lodestar
method used for assessing fees against the losing party but rather should determine whether “the fee
sought is reasonable for the services rendered,” taking into account factors such as the character of
the representation, results achieved, any attorney-created delay, and whether the award would be a
windfall for the attorney. Id. at 806-08.
The fee requested by Attorney Lein in this case is reasonable. Lein is an experienced social
security attorney who obtained excellent results for his client, securing a stipulated remand that
ultimately led to a monthly benefit award to plaintiff of $1,268 and past-due benefits of nearly
$86,000, not to mention Medicare eligibility. Although an award of approximately $15,000 for 21.2
hours of work is on the high side (it translates to an hourly rate of $723), it is not outside the range
of awards granted in similar cases. See Koester v. Astrue, 482 F. Supp. 2d 1078, 1083 (E.D. Wis.
2007) (collecting cases showing that district courts have awarded representative fees with hourly rates
ranging from $400 to $1,500). Moreover, as in all social security cases, there was a high risk that
Lein would recover nothing. See Martinez v. Astrue, 630 F.3d 693, (7th Cir. 2011) (discussing a study

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finding 65.05% of Social Security appeals resulted in an affirmance of the denial of benefits).
Finally, neither Knope nor the Commissioner opposes the motion. See dkts. 20-5 & 24. Accordingly,
the court will grant Lein’s motion for attorney fees in the amount of $15,343.25 and direct that he
refund to plaintiff the amount of the EAJA fee, or $4,001.11.

ORDER
It is ORDERED that plaintiff’s motion for attorney fees pursuant to 42 U.S.C. § 406(b), dkt.
20, is GRANTED. The court approves a representative fee award of $15,343.25 to be payable to
plaintiff’s attorney, Curtiss Lein, out of plaintiff’s past-due benefits. Lein is directed to refund to
plaintiff the amount of the EAJA fee, or $4,001.11, not later than November 6, 2018.

Entered this 7th day of September, 2018.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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