UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

JAMES W. COFFEL, )

)

Plaintiff, )

) 

v. ) CAUSE NO. 3:14-cv-2067-PPS-CAN

)

NANCY A. BERRYHILL,1

 Acting )

Commissioner of Social Security )

Administration, )

)

Defendant. )

OPINION AND ORDER

This matter is before me on Plaintiff’s counsel’s Motion for an Award of Attorney

Fees Under 42 U.S.C. § 406(b), DE 31, which seeks $3,466.15 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 his case to this Court on December 12, 2014. [DE

1.] On March 29, 2016, I remanded the case for further proceedings and a new decision

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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.
by the ALJ. [DE 26.] On July 13, 2016, I granted the Parties’ Joint Stipulation to an

Award of Attorney Fees Under the Equal Access to Justice Act. [DE 30.]

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

from the Commissioner in his favor. The NOA awarded Plaintiff $62,147.00 in total

back benefits. [DE 31-6.] The Commissioner withheld $15,536.75 of the award for

Plaintiff’s counsel for his work on the case. [Id. at 2.] Of that award, $3,900 was

awarded to Plaintiff’s counsel pursuant to 42 U.S.C. § 406(a) for work done exclusively

at the administrative level before the Social Security Administration, leaving $11,636.75

for a potential award under Section 406(b). [Id.] What happens in most cases is that

counsel would seek this full amount and then I would order him/her to refund to the

plaintiff the lesser of the Section 406(b) award and the EAJA award, as counsel cannot

double collect for the same work. Plaintiff’s counsel, however, already has done the

math for me and requests Section 406(b) fees that offset the EAJA award. Plaintiff asks

me to approve a fee authorization in the amount of $3,466.15 pursuant to Section

406(b)(1) of the Social Security Act. Plaintiff’s counsel arrives at this number by

subtracting: (1) the previously awarded fees under the EAJA of $7,500; and (2) a

$670.60 “correction” to take into account a 60 day delay caused by two motions for

extension of time to file opening brief filed by Plaintiff’s attorney from the remaining

$11,636,75. The Commissioner does not object to the request. [DE 33.]

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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

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

his attorney, Randal S. Forbes, and his associate Jason S. Rodman. [DE 31-1 at 1.] 

Plaintiff was awarded past due benefits in the amount of $62,147.00, and the

Commissioner reserved twenty five percent, $15,536.75, in case Plaintiff needed to pay

counsel, $3,466.15 of which counsel now asks me to award him. This amount is

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reasonable. Attorney Forbes and his associate’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 favorable decision and an

award of retroactive benefits.

In addition, counsel worked on contingent fee basis, so the risk that he won’t

recover for his 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 $11,636.75 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 his client sought in filing the suit and

should be properly compensated for his work. Plaintiff’s counsel acknowledges that he

caused a sixty day delay in this action by filing two motions for extension of time to file

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opening brief. [DE 31 at 3.] To account for this delay, Plaintiff’s counsel’s request for

fees includes a reduction of $670.60, which represents 25% of back pay for the most

recent two months, the highest monthly benefit amounts. [Id. at 4 n.1.]

There is one final piece of business. Attorney Forbes already has received $7,500

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. Because Attorney Forbes’ request for fees pursuant to Section 406(b) already

offsets the EAJA fees, requesting only $3,466.15 in fees under Section 406(b) and not the

total remaining $11,636.75, the EAJA fees will effectively be refunded to Coffel when he

receives the balance of the $15,536.75 reserved from past-due benefits for payment of

attorney’s fees.

Conclusion

Plaintiff’s counsel’s Motion for an Award of Attorney Fees Under 42 U.S.C. §

406(b), DE 31, is GRANTED. The Court GRANTS Counsel’s petition for §406(b) fees in

the amount of $3,466.15. The Court ORDERS that payment by the Commissioner in the

amount of $3,466.15 be paid directly to Randal S. Forbes in accordance with the

agreement signed by Plaintiff and the remaining balance of $15,536.75 the Social

Security Administration reserved from Coffel’s past due benefits to pay for his lawyer

be paid to Coffel. 

SO ORDERED.

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ENTERED: August 22, 2017.

s/ Philip P. Simon 

PHILIP P. SIMON, JUDGE

UNITED STATES DISTRICT COURT 

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