UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

KEITH E. BAILEY, )

)

 Plaintiff, )

)

 v. ) CIVIL NO. 1:14cv390

)

NANCY A. BERRYHILL, Acting )

Commissioner of Social Security, )

)

 Defendant. )

OPINION AND ORDER

This matter is before the court on a motion for an award of attorneys fees under 42 U.S.C.

§406(b), filed by the Plaintiff on March 2, 2018. The defendant Commissioner filed a response

on March 30, 2018, to which Plaintiff replied on April 7, 2018.

On December 12, 2014, Plaintiff’s attorney filed a complaint for review in this cause,

which resulted in a reversal and remand of this case under sentence four of 42 U.S.C. § 405(g).

On April 10, 2017, this Court awarded attorney fees in the amount of $10,000, pursuant to the

Equal Access to Justice Act (“EAJA”).

On September 8, 2017, upon remand, an Administrative Law Judge entered a Fully

Favorable Decision. Plaintiff was awarded $58,259.34. Plaintiff’s attorney requests a fee award

of 25%, or $14,564.84, minus the prior $10,000.00 EAJA award, and minus a 406(a)

representative fee in the amount of $1,904.75. Thus, at this time, Plaintiff’s counsel is seeking

$2,660.09 in fees.

Plaintiff and his counsel had entered into a contingency agreement providing that if

Plaintiff prevails on his claim, he will pay a fee up to 25% of any past-due benefits awarded, with
the provision that any administrative fee that counsel obtained under §406(a) and/or the EAJA

will be deducted from the §406(b) award.

The Social Security Act’s provisions governing fees for representation are found in 42

U.S.C. § 406; see Gisbrecht v Barnhart, 535 U.S. 789, 794 (2002) (reviewing history of attorney

fees under the Social Security Act). Section 406(a) governs fees for representing claimants in the

administrative process. 42 U.S.C. § 406(a). Section 406(b) governs attorney fees for successful

litigation for benefits under Title II of the Social Security Act such as Disability Insurance

Benefits, 42 U.S.C. §§ 416(I), 423, and, pursuant to § 302 of Public Law 108-203, for litigation

for benefits under Title XVI of the Social Security Act or Supplemental Security Income,

42 U.S.C. §§ 1382, 1382a. 42 U.S.C. § 406(b).

The court must review all fee requests under § 406(b). Congress intended such review not

to override the claimant and counsel’s fee arrangement but rather to act as an “independent

check” to ensure that the arrangement yielded a reasonable result in the particular case.

Gisbrecht, 535 U.S. at 807. “Congress has provided one boundary line: Agreements are

unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due

benefits.” Id. Within the 25% boundary, the attorney for the successful claimant must show that

the fee sought is reasonable for the services rendered. Id. In making this determination, the court

may consider the character of the representation and the results obtained, reducing an award if

the attorney is responsible for delay in the proceeding that had the effect of inflating past-due

benefits, or if the fee is so large in comparison to the amount of time counsel spent on the case

that the fee would constitute a windfall to the attorney. Id. at 808.

Plaintiff’s attorney contends, and the Commissioner does not dispute, that the requested

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fee (as corrected) is reasonable. This amount reflects a valid contract between Plaintiff and his

counsel, the substantial risk associated with this litigation and potential recovery, the results

obtained for the Plaintiff, the time Counsel expended on the matter, and the required refund of

the fee awards previously obtained under the EAJA and § 406(a).

Accordingly, as Plaintiff’s attorney has followed the terms of his agreement and the

applicable statutes, this court will grant the fee petition.

Conclusion

On the basis of the foregoing, Plaintiff's motion for an award of attorney fees pursuant to

42 U.S.C. § 406(b), in the amount of $2660.09 is hereby GRANTED.

 

 Entered: April 27, 2018.

 s/ William C. Lee 

 William C. Lee, Judge

 United States District Court

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