Wolfe v. Commissioner of Social Security, No. 1:2021cv00472 - Document 28 (N.D. Ind. 2023)

Court Description: OPINION AND ORDER: the Court GRANTS the Plaintiff's Motion for Authorizationof Attorney Fees Pursuant to 42 U.S.C. Section 406(b) 25 , AWARDS an attorney fee under 42 U.S.C. § 406(b) of $20,624.73, and DIRECTS that the amount of $9,167.13, which already accounts for the offset of EAJA fees of $11,457.60, be paid directly to counsel for the Plaintiff. Signed by Judge Theresa L Springmann on 10/10/2023. (mrm)

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Wolfe v. Commissioner of Social Security Doc. 28 USDC IN/ND case 1:21-cv-00472-TLS-SLC document 28 filed 10/10/23 page 1 of 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION TERESA A. WOLFE, Plaintiff, v. CAUSE NO.: 1:21-CV-472-TLS-SLC KILOLO KIJAKAZI, Acting Commissioner of the Social Security Administration, Defendant. OPINION AND ORDER This matter is before the Court on the Plaintiff’s Motion for Authorization of Attorney Fees Pursuant to 42 U.S.C. Section 406(b) [ECF No. 25], filed on September 21, 2023. The Plaintiff’s attorney requests attorney fees in the amount of $20,624.73 pursuant to 42 U.S.C. § 406(b), with a net amount of $9,167.13 paid to counsel. The Commissioner does not object. ECF No. 27. For the reasons stated below, the Motion is GRANTED. BACKGROUND The Plaintiff’s attorney represented the Plaintiff before this Court in a judicial review of the Commissioner’s unfavorable decision on the Plaintiff’s application for disability insurance benefits. The Court reversed and remanded this case for further proceedings. ECF No. 17. Subsequently, the Court awarded $11,457.60 in attorney fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. ECF No. 24. On remand, the Social Security Administration issued a Notice of Award entitling the Plaintiff to past-due disability insurance benefits, twenty-five percent of which ($20,624.73) was withheld for the payment of attorney fees. See Mot. Ex. at 7, ECF No. 26-1. The Plaintiff’s attorney filed the instant motion requesting that the Court award attorney fees pursuant to Dockets.Justia.com USDC IN/ND case 1:21-cv-00472-TLS-SLC document 28 filed 10/10/23 page 2 of 3 § 406(b) in the net amount of $9,167.13. This amount is based on the retainer agreement between the Plaintiff and her attorney, Mot. Ex. at 2, in which the Plaintiff agreed to pay her attorney twenty-five percent of all past-due benefits for work at the federal court level. The total request for an award under § 406(b) is $20,624.73, which equals the twenty-five percent of past-due benefits withheld by the Social Security Administration. Counsel for the Plaintiff requests that the award of $20,624.73 be offset by the total prior EAJA fees awards of $11,457.60, for a net payment to the attorney of $9,167.13 in § 406(b) fees. ANALYSIS The Social Security Act allows for a reasonable fee to be awarded both for representation at the administrative level, see 42 U.S.C. § 406(a), as well as representation before the Court, see id. § 406(b). Culbertson v. Berryhill, 139 S. Ct. 517, 520 (2019) (quoting Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002)). Under § 406(b), the Court may award a reasonable fee to the attorney who has successfully represented the claimant in federal court, not to exceed twenty-five percent of the past-due benefits to which the social security claimant is entitled. 42 U.S.C. § 406(b)(1)(A); Gisbrecht, 535 U.S. at 792. The reasonableness analysis considers the “character of the representation and the results the representative achieved.” Gisbrecht, 535 U.S. at 808. An award of EAJA fees under 28 U.S.C. § 2412 offsets an award under § 406(b). Id. at 796. In this case, the requested amount of attorney fees is consistent with the contingency agreement. The proposed fee equals an effective hourly rate of approximately $415.82 for the total requested § 406(b) fee award of $20,624.73. See Mot. Ex. at 11–13 (reflecting 49.6 attorney hours). Such an hourly rate is reasonable given the contingent nature of this case. See, e.g., Osmun v. Comm’r of Soc. Sec., No. 1:16-CV-273, 2020 WL 7334271, at *3 (N.D. Ind. Dec. 14, 2020) (effective hourly rate of $525); Niebuhr v. Saul, No. 18-CV-720, 2020 WL 6484488, at *1 2 USDC IN/ND case 1:21-cv-00472-TLS-SLC document 28 filed 10/10/23 page 3 of 3 (W.D. Wis. Nov. 4, 2020) (effective hourly rate of $579); Koester v. Astrue, 482 F. Supp. 2d 1078, 1083 (E.D. Wis. 2007) (collecting cases showing that district courts have awarded attorney fees with hourly rates ranging from $400 to $1,500). In addition, counsel obtained a great benefit for the Plaintiff in the past-due benefits award as well as future benefits. CONCLUSION For the reasons stated above, the Court GRANTS the Plaintiff’s Motion for Authorization of Attorney Fees Pursuant to 42 U.S.C. Section 406(b) [ECF No. 25], AWARDS an attorney fee under 42 U.S.C. § 406(b) of $20,624.73, and DIRECTS that the amount of $9,167.13, which already accounts for the offset of EAJA fees of $11,457.60, be paid directly to counsel for the Plaintiff. SO ORDERED on October 10, 2023. s/ Theresa L. Springmann JUDGE THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT 3

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