UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

MELODIE LYNN REAM, )

)

Plaintiff, )

) 

v. ) CAUSE NO. 3:14-cv-224-PPS-CAN

)

NANCY A. BERRYHILL1

 Acting )

Commissioner of Social Security )

Administration, )

)

Defendant. )

AMENDED OPINION AND ORDER

This matter is before me on Plaintiff’s counsel’s motion for attorney fees

Pursuant to 42 U.S.C. § 406(b)(1), DE 25, which seeks $16,300.00 in attorney’s fees, a

percentage of the past-due Social Security Disability Insurance Benefits awarded by the

Commissioner of Social Security to Plaintiff. For the reasons explained in detail below, I

find the request reasonable and the motion is GRANTED. 

Background

After being denied Disability Insurance benefits under the provisions of the

Social Security Act, Plaintiff appealed her case to this Court on February 4, 2014. [DE 1.] 

On March 30, 2015, I remanded the case for further proceedings and a new decision by

1

Pursuant to Federal Rule of Civil Procedure 25(d), Nancy A. Berryhill is

substituted for her predecessor, Carolyn W. Colvin, as defendant in this suit.
the ALJ. [DE 18.] On July 13, 2015, I approved the Parties’ Joint Stipulation for

Attorney Fees pursuant to the Equal Access to Justice Act. [DE 23.]

On remand from this Court, Plaintiff then received a Notice of Award (“NOA”)

from the Commissioner in her favor. The NOA awarded Plaintiff $104,690.00 in total

back benefits. [DE 25-3 at 6-11.] The Commissioner withheld $26,172.50 of the award

for Plaintiff’s counsel for their work on the case. [Id. at 8.] Plaintiff’s counsel now asks

me to approve a fee authorization in the amount of $16,300.00 pursuant to Section

206(b)(1) of the Social Security Act. [DE 25-2 at 4.] Plaintiff’s counsel represents that

they will request that the Social Security Administration approve $9,887.60 as their fee

for work before the agency, thus requesting a total of $26,172.50,2

 the total amount

withheld by the Commissioner, for work before the agency and federal court. [Id.] The

Government has not objected to the request.

Discussion

Section 406(b) of the Social Security Act provides: “Whenever a court renders a

judgment favorable to a claimant under this subchapter who was represented before the

court by an attorney, the court may determine and allow as part of its judgment a

2

Throughout their briefing, Plaintiff’s counsel states that the amount withheld by

the Commissioner for fees as $26,172.60, when it was $.10 less. I believe this is likely a

typo and will read Plaintiff counsel’s briefing to represent that their requested fees to be

approved by Social Security Administration, in combination with their requested fees to

be approved by me, equal the withheld $26,172.50.

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reasonable fee for such representation, not in excess of 25 percent of the total of the

past-due benefits to which the claimant is entitled by reason of such judgment.” 42

U.S.C. § 406(b)(1)(A). Section 406(b) is intended to control, but not displace, contingent

fee arrangements. Gisbrecht v. Barnhart, 535 U.S. 789, 793 (2002). The district court is to

review the amount set by the fee agreement for reasonableness based on “the character

of the representation and the results the representative achieved.” Id. at 807. The

Supreme Court described three situations in which courts have appropriately reduced

fees as unreasonable: (1) the representation is substandard, (2) counsel’s delay caused

past-due benefits to accumulate during the pendency of the case in court, and (3) pastdue benefits are large in comparison to the amount of time counsel spent on the case. 

Id. at 808.

Here, Plaintiff entered into a twenty-five-percent contingency fee agreement with

the Law Offices of Harry J. Binder and Charles E. Binder. [DE 25-3 at 2.] Plaintiff was

awarded past due benefits in the amount of $104.690.00, and the Commissioner

withheld 25%, $26,172.50, in case Plaintiff needed to pay counsel, $16,300.00 of which

counsel now asks me to award them. This amount is reasonable. First, Plaintiff’s

counsel’s representation was not substandard. On the contrary, counsel secured a

remand from this court and reversal of the original administrative decision resulting in

the Plaintiff receiving a full favorable decision and an award of six years of retroactive

benefits. Further, counsel did not cause any unnecessary delay. 

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Finally, counsel worked on contingent fee basis, so the risk that they won’t

recover for their client, and thus won’t be paid at all, has to be priced in to the

computation of a reasonable fee. See Bastic v. Bowen, 691 F. Supp. 1176, 1177 (N.D. Ill.

1988) (“[A] universe in which lawyers go wholly unpaid in cases they lose, but are paid

for the cases they win at rates that fail to reflect the risk of loss, is a distorted

universe.”). The risk of no recovery is high in a Social Security case. See Martinez v.

Astrue, 630 F.3d 693, (7th Cir. 2011) (discussing a study finding 65.05% of Social Security

appeals resulted in an affirmance of the denial of benefits). In this context, then, an

award of $16,300.00 is not unreasonable. And awards of larger size have been

approved in this district. See, e.g. Soptich v. Colvin, No. 3:15-CV-109, 2017 WL 711021, at

*2 (N.D. Ind. 2017) (approving award of $18,646); Denune v. Colvin, No. 1:11-CV-64, 2014

WL 3899308, at *4 (N.D. Ind. 2014) (approving award of $24,830); Sparrow v. Astrue, No.

3:07-CV-506-TLS, 2010 WL 2195276, at *1 (N.D. Ind. 2010) (approving award of

$17,322.10). Plaintiff’s counsel achieved the result their client sought in filing the suit

and should be properly compensated for their work. 

There is one final piece of business. Plaintiff’s counsel already has received

$3,800.00 in EAJA fees. While fee awards may be made under both Section 406 and the

EAJA, the attorney must refund to the claimant the amount of the smaller fee. Gisbrecht,

535 U.S. at 796. Plaintiff’s counsel agrees to refund the $3,800.00 in EAJA fees. [DE 25-2

at 4.] 

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Conclusion

Plaintiff’s counsel’s motion for attorney fees Pursuant to 42 U.S.C. § 406(b)(1), DE

25, GRANTED. The Court GRANTS Counsel’s petition for §406(b) fees in the amount

of $16,300.00. The Court ORDERS that payment by the Commissioner in the amount of

$16,300.00 be paid directly to the Law Offices of Charles E. Binder and Harry J. Binder,

LLP. The Court further ORDERS the Law Offices of Charles E. Binder and Harry J.

Binder, LLP to REFUND Plaintiff $3,800.00 which represents the amount of the EAJA

award already paid to the Law Offices of Charles E. Binder and Harry J. Binder, LLP

and now credited to Plaintiff. 

SO ORDERED.

ENTERED: August 11, 2017.

s/ Philip P. Simon 

PHILIP P. SIMON, JUDGE

UNITED STATES DISTRICT COURT 

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