UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF INDIANA 

FORT WAYNE DIVISION 

DOUGLAS K. MISENER, 

 Plaintiff, 

 v. 

CAROLYN W. COLVIN, Acting 

Commissioner of Social Security, 

 Defendant. 

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Case No. 1:12-CV-036 JD 

OPINION AND ORDER

Now before the Court is a motion by Plaintiff’s counsel for approval of attorneys’ fees 

pursuant to 42 U.S.C. § 406(b). [DE 35]. Plaintiff Douglas K. Misener brought this suit to 

contest a denial of disability benefits by Defendant Commissioner of Social Security. [DE 1]. 

The Court found in Plaintiff’s favor and remanded the case to the Commissioner for further 

proceedings. [DE 26]. Plaintiff then filed a motion for attorney’s fees under the Equal Access to 

Justice Act, which the Court granted in the amount of $6,414.70. [DE 33]. 

On remand to the Commissioner, the Commissioner found in Mr. Misener’s favor and 

awarded him benefits effective March 2009. Mr. Misener received past due benefits of 

$58,458.00, which was the amount due from March 2009 through March 2014, and his two 

children also received child’s benefits, which included payments of $13,335.00 each for the 

amount owed for the period of March 2009 through April 2014. Mr. Misener’s counsel then filed 

the instant motion pursuant to 42 U.S.C. § 406(b), seeking the Court’s authorization of a 

payment of $15,282.00 in attorneys’ fees pursuant to his contingent-fee agreement with Mr. 

Misener, subject to their refunding their EAJA fees to Mr. Misener. Neither the Commissioner 

nor Mr. Misener has responded to this motion, which is now ripe for ruling.
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I. LEGAL STANDARD 

Fees for representing social security claimants, both administratively and before the 

federal court, are governed by 42 U.S.C. § 406. Gisbrecht v. Barnhart, 535 U.S. 789, 793, 795–

96 (2002). Section 406(a) controls fees for representation in administrative proceedings and 

§ 406(b) controls attorney fees for representation in court, and the combination of these fees 

cannot exceed 25% of a claimant’s past-due benefits award. Id. Unlike fees obtained under the 

EAJA, the fees awarded under § 406 are charged against the claimant, not the government, and 

the fee is payable “out of, and not in addition to, the amount of past-due benefits.” Id. (citing 42 

U.S.C. § 406(b)(1)(A)). Thus, under § 406(b), an attorney who has successfully represented a 

claimant in federal court may receive “a reasonable fee for such representation, not in excess of 

25 percent of the total past-due benefits to which the claimant is entitled by reason of such 

judgment . . .”. Id. Moreover, § 406(b) has been harmonized with the EAJA. Specifically, 

“Congress provided authority for awarding fees for the same work under 42 U.S.C. § 406 and the 

EAJA in the 1985 EAJA amendments, so long as the smaller fee is refunded to the client.” Ward 

v. Sullivan, 758 F. Supp. 1312, 1315 (E.D. Mo. 1991); see also Gisbrecht, 535 U.S. at 796 

(explaining that “an EAJA award offsets an award under Section 406(b)”); Hanrahan v. Shalala, 

831 F. Supp. 1440, 1452 (E.D. Wis. 1993) (“[W]hen attorney’s fees are awarded under both the 

SSA and the EAJA for the same services, an attorney is entitled to keep the larger fee but must 

return the smaller fee to the claimant.”). 

Furthermore, the court is required under § 406(b) to review for reasonableness the 

attorney fees yielded by contingent-fee agreements. Gisbrecht, 535 U.S. at 809. The Supreme 

Court has explained: 

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. 
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Within the 25 percent boundary, . . . the attorney for the successful claimant must 

show that the fee sought is reasonable for the services rendered . . . 

Courts that approach fee determinations by looking first to the contingent-fee 

agreement, then testing it for reasonableness, have appropriately reduced the 

attorney’s recovery based on the character of the representation and the results the 

representative achieved. If the attorney is responsible for delay, for example, a 

reduction is in order so that the attorney will not profit from the accumulation of 

benefits during the pendency of the case in court. If the benefits are large in 

comparison to the amount of time counsel spent on the case, a downward 

adjustment is similarly in order. 

Id. at 807–08 (citations and footnotes omitted). 

II. DISCUSSION 

Here, Plaintiff’s counsel request that the Court authorize under § 406(b) the payment of 

attorneys’ fees in the amount of $15,282.00 pursuant to the contingent-fee agreement for their 

representation of Mr. Misener, subject to their refunding to Mr. Misener the EAJA fee of 

$6,414.70. This amount represents 25% of the total of $85,128 in past-due benefits awarded to 

Mr. Misener and his children, less the $6,000 counsel received for representing Mr. Misener 

before the Commissioner. See Hopkins v. Cohen, 390 U.S. 530 (1968) (holding that attorneys’ 

fees under 42 U.S.C. § 406(b) can be calculated based upon benefits awarded to the claimant 

plus any other derivative benefits, such as benefits awarded to the claimant’s children based on 

the claimant’s award). 

Counsel spent 31.73 hours litigating this matter, not accounting for time spent by 

paralegals and law clerks, so under a lodestar approach, this would equate to $481 per hour. 

While this may seem excessive at first glance, the contingent nature of the fee brings it well in 

line with reasonable fees for this type of work. The Seventh Circuit has estimated that 34.95% of 

social security cases that are appealed to the federal courts result in the claimant’s receipt of 

benefits. Martinez v. Astrue, 630 F.3d 693, 695 (7th Cir. 2011). When multiplying the hourly rate 

in this case by the general rate of success, the effective hourly rate becomes $168, which is 
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slightly less than the hourly rates that are commonly awarded under the EAJA.1

 In addition, this 

contingency fee only applies to past-due benefits, not the amount of benefits paid going forward. 

Counsel estimate Mr. Misener’s total lifetime benefits due to the favorable social security award 

to be over $338,583. The contingency fee counsel seek represents only 4.5% of that total 

amount, further justifying the reasonableness of the fee. Finally, counsel did not engage in any 

sort of delay in prosecuting this matter, such as might improperly increase the amount of pastdue benefits upon which their contingency fee would be calculated. They requested only one 

extension of 30 days to file their opening brief, which is commonplace in these matters, and did 

not request any extension to file their reply brief. By comparison, the Commissioner sought two 

extensions of time to file its response brief. 

Therefore, the Court concludes that counsel’s request is reasonable and grants the 

request. However, as discussed above, and as counsel acknowledge, the lesser of the amount of 

attorney fees awarded under § 406(b) and under the EAJA must be refunded to the claimant. See 

Gisbrecht, 535 U.S. at 796. 

III. CONCLUSION 

Plaintiff’s counsel’s petition for attorney fees pursuant to 42 U.S.C. § 406(b)(1) [DE 35] 

is GRANTED. The Court AWARDS Plaintiff’s counsel attorneys’ fees of $15,282.00 out of the 

past-due benefits awarded to Mr. Misener. Upon receipt of this sum, Counsel must refund to Mr. 

Misener the $6,414.70 award they received under the EAJA. 

 

1

 Granted, this does not take into account cases where the district court remands the case but the 

Commissioner again denies benefits, in which case the attorneys may receive fees under the 

EAJA even though they will not receive a portion of the past-due benefits. However, this 

calculation still tempers the otherwise-excessive appearance of the rate. 
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 SO ORDERED. 

 ENTERED: April 17, 2015 

 /s/ JON E. DEGUILIO 

 Judge 

 United States District Court