UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

SOUTH BEND DIVISION

RICKY MANSFIELD, )

)

Plaintiff, )

) 

v. ) CAUSE NO. 1:15CV262-PPS/SLC

)

NANCY A. BERRYHILL, Acting )

Commissioner of Social Security )

Administration, )

)

Defendant. )

OPINION AND ORDER

This matter is before me on Plaintiff’s counsel’s Motion for Authorization of

Attorney’s Fees Pursuant to 42 U.S.C. § 406(b), which seeks an award of attorney’s fees

in the amount of $2,942.50, 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 September 14, 2015. [DE

1.] Plaintiff was represented by Attorneys Joseph Sellers and Deborah Spector for

purposes of proceedings in this Court. On December 1, 2016, I entered an opinion and
order reversing the Commissioner’s decision and remanding for further proceedings.

[DE 20.] On March 20, 2017, I ordered payment of attorney’s fees under the Equal

Access to Justice Act, 28 U.S.C. § 2412, in the amount of $4,700.00 to Plaintiff’s attorney.

[DE 23.]

On remand from this Court, the Commissioner issued a partially favorable

decision allowing Plaintiff’s claim. [DE 26-1.] Plaintiff, who was represented by a

different attorney for the administrative proceedings, then received a Notice of Award

(“NOA”) from the Commissioner finding that the Plaintiff was due $54,470.00 in total

past-due benefits. [DE 26-2 at 5.] Twenty-five percent of the award, or $13,642.50, has

been withheld for the payment of attorney’s fees. A fee of $6,000 will be paid to the

attorney who represented Plaintiff before the Commissioner on remand, pursuant to a

fee agreement. [DE 26-2 at 5.] This leaves $7,642.50 for the remainder of the attorney’s

fees.

Plaintiff and Attorneys Seller and Spector entered into a fee agreement in which

they agreed upon a fee of 25% of past-due benefits recovered would be paid to the

attorneys for legal services in the District Court. [DE 26-3.] They now request approval

of a fee in the amount of $2,942.50, which represents the rest of the amount available for

legal fees minus the already received $4,700 in EAJA fees. The Commissioner does not

oppose their motion.

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Discussion

Section 206(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 206(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 25% contingency fee agreement with his attorneys. 

[DE 26-3.] Plaintiff was awarded past due benefits in the amount of $54,570.00. 

Twenty-five percent of the award totals $13,642.50, of which $6,000.00 will be paid to

Plaintiff’s attorney for the administrative proceedings. Attorneys Seller and Spector

now seek $2,942.50 (which is the rest of the money available for attorney’s fees minus

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the EAJA funds the attorneys have already received). This amount is reasonable. 

Attorneys Sellers and Spector’s representation was not substandard. On the contrary,

counsel secured a remand 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 $2,942.50 (or $7,642.50 including EAJA fees) is not unreasonable. And awards

of larger size have been approved in this district. See, e.g. Soptich v. Colvin, No. 3:15-CV109, 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. The

Defendant Commissioner of Social Security does not object to this fee request. [DE 26.]

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Attorneys Sellers and Spector have already has received $4,700.00 in EAJA fees. 

While fee awards may be made under both Section 206 and the EAJA, the attorney must

refund to the claimant the amount of the smaller fee. Gisbrecht, 535 U.S. at 796. 

However, they already accounted for this and have adjusted their request for attorney’s

fees accordingly. Therefore, they are not required to refund the EAJA fees already

received.

Conclusion

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

406(b), DE 26, is GRANTED. The Court GRANTS Counsel’s petition for Section 206(b)

fees in the amount of $2,942.50. The Court ORDERS that payment by the

Commissioner in the amount of $2,942.50 be paid directly to Joseph Sellers and Deborah

Spector in accordance with the agreement signed by Plaintiff.

SO ORDERED.

ENTERED: April 18, 2018.

s/ Philip P. Simon 

PHILIP P. SIMON, JUDGE

UNITED STATES DISTRICT COURT 

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