Krusec, Gregory v. Berryhill, Nancy

Filing 42

OPINION AND ORDER denying without prejudice 40 Motion for Attorney Fees. Signed by District Judge James D. Peterson on 10/13/2020. (kwf)

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

GREGORY P. KRUSEC,
Plaintiff,
v.

OPINION and ORDER

ANDREW SAUL,
Commissioner of Social Security,

18-cv-120-jdp

Defendant.1
Plaintiff Gregory P. Krusec appealed the decision of the commissioner of the Social
Security Administration denying his application for disability insurance benefits. The court
remanded the case to the agency for further proceedings and awarded Krusec’s attorney, Barry
A. Schultz, $7,500 in attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C.
§ 2412. Dkt. 24 and Dkt. 37. On remand, the commissioner determined that Krusec was
entitled to benefits beginning in November 2008. Dkt. 40-1, at 1. Schultz now moves for an
attorney fee award of $45,184.40 pursuant to 42 U.S.C. § 406(b), which he says will be divided
between himself and another attorney, Jeffrey Rabin, who represented Krusec in a prior lawsuit
regarding his claim for benefits. Dkt. 40. The commissioner does not oppose Schultz’s fee
request. Dkt. 41.
Section 406(b) allows the court to award a prevailing plaintiff’s attorney a fee of up to
25 percent of past-due benefits. Schultz says that the commissioner awarded Krusec
$180,737.60 in past-due benefits, 25 percent of which would be the $45,184.40 that Schultz

1

The court has changed the caption in this case to reflect that Andrew Saul was confirmed as
the Commissioner of the Social Security Administration after Krusec filed this lawsuit.

seeks in attorney fees. But the notice of award that Schultz has attached to his motion doesn’t
indicate the total amount of past-due benefits to which Krusec is entitled, nor does it contain
any information from which the court can derive that figure. See Dkt. 40-1. The notice states
that Krusec is entitled to benefits beginning November 2008 and provides Krusec’s monthly
benefit amounts for each year, then states that the agency will withhold Krusec’s past-due
benefits until it determines whether he received supplemental security income during that
period. Dkt. 40-1, at 2. The notice then states that the agency will send Krusec another letter
after it has determined whether it must reduce his past-due benefits. Id.
The court cannot assess whether Schultz is entitled to the fees he seeks if it cannot
verify his calculations, so the court will deny his motion without prejudice. If Schultz wishes
to receive further fees in this case, he should either submit documentation from the agency
indicating the amount of Krusec’s past-due benefits or explain in his renewed motion how he
calculated that amount.

ORDER
IT IS ORDERED that Barry A. Schultz’s motion for $45,184.40 in attorney fees under
42 U.S.C. § 406(b), Dkt. 40, is DENIED without prejudice.
Entered October 13, 2020.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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