UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

CATHERINE TOWNSEND, )

Plaintiff, )

)

v. ) CAUSE NO.: 2:12-CV-516-PRC

)

NANCY BERRYHILL, Acting Commissioner )

of the Social Security Administration, )

Defendant. )

OPINION AND ORDER

This matter is before the Court on Plaintiff’s Motion for Approval of Attorneys Fees

Pursuant to 42 U.S.C.A. Section 406(b) [DE 37], filed by Plaintiff Catherine Townsend on October

26, 2017. The Commissioner has not filed a response, and the time in which to do so has passed.

The Court has jurisdiction over this fee petition pursuant to 42 U.S.C. § 406(b) as the Court 

entered an Opinion and Order reversing the decision of the ALJ and remanding this case for an

award of benefits. On May 18, 2015, the Administration issued a Notice of Award with past-due

benefits calculated in the amount of $63,772.92. Of this amount, $15,943.23 represents 25% of the

past-due benefits.

Section 206(b)(1) of the Social Security Act permits a court to award up to 25% of past-due

benefits to which the claimant is entitled by reason of a judgment rendered in favor of the claimant.

See 42 U.S.C. § 406(b)(1). Plaintiff agreed to pay counsel Barry A. Schultz 25% of all past-due

benefits awarded to Plaintiff. Plaintiff states that she also has an eligible auxiliary and that 25% of

the auxiliary’s total past-due award is implied to be $7,438.50. Plaintiff represents that her counsel

has spent significant time trying to obtain a copy of the Notice of Award to the auxiliary without

success and has been informed that the wait time to receive a copy of the Notice is approximately

six to ten months.
The Court is authorized by Section 206(b)(1) to award up to 25% of Plaintiff’s entitled

benefits. On the record currently before the Court, in terms of both evidence presented and citation

to legal authority, the Court cannot determine that the Social Security Administration will decide

or has decided to make the “implied” past-due award to Plaintiff’s auxiliary. Thus, the request for

an award of attorneys fees based on the past-due benefits to Plaintiff’s auxiliary will be denied

without prejudice.

Plaintiff’s counsel received $6,000.00 in attorney fees for representation at the administrative

level under 42 U.S.C. 406(a). The $6,000.00 already received should be subtracted from the 25%

of the past-due benefits, for a sum of $9,943.23 awarded under 42 U.S.C. 406(b).

Attorney Schultz was previously granted $9,976.25 for work before the Court under the

EAJA. “Congress harmonized fees payable by the Government under EAJA with fees payable under

§ 406(b) out of the claimant’s past-due Social Security benefits in this manner: Fee awards may be

made under both prescriptions, but the claimant's attorney must ‘refun[d] to the claimant the amount

of the smaller fee.’” Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (quoting Act of Aug. 5, 1985,

Pub. L. No. 99-80, § 3, 99 Stat. 186 (1985)). Because the Court is denying without prejudice the

request for an award of attorney fees out of the implied award of past-due benefits to the auxiliary,

the smaller fee is currently the 406(b) award. However, the Court notes that, if the request for fees

based on the auxiliary’s award is renewed, the EAJA fee award may become the smaller fee award.

Having reviewed the Motion, noting the lack of objection, and finding the fee reasonable for

the hours of legal work spent and the lifetime benefit to Plaintiff, the Court hereby GRANTS in

part and DENIES without prejudice in part Plaintiff’s Motion for Approval of Attorneys Fees

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Pursuant to 42 U.S.C.A. Section 406(b) [DE 37] and AWARDS Plaintiff’s counsel a total of

$9,943.23 in attorney fees pursuant to §206(b)(1) of the Social Security Act.

The Court further ORDERS that payment by the Commissioner in the amount of $9,943.23 

be made directly to counsel Barry A. Schultz in accordance with the fee agreement signed by

Plaintiff.

Upon receipt of the fee, counsel is ORDERED to refund to Plaintiff the smaller of the fee

awards received, that is, $9,943.23.

SO ORDERED this 15th day of November, 2017.

s/ Paul R. Cherry 

MAGISTRATE JUDGE PAUL R. CHERRY

UNITED STATE DISTRICT COURT

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