UNITED STATES DISTRICT COURT 

 NORTHERN DISTRICT OF INDIANA 

 SOUTH BEND DIVISION 

ZACHARY BALL, ) 

 ) 

PLAINTIFF ) 

 ) 

VS. ) CAUSE NO. 3:16-CV-532 RLM-MGG 

 ) 

ANDREW SAUL,1 COMMISSIONER OF ) 

SOCIAL SECURITY, ) 

 ) 

DEFENDANT ) 

 OPINION AND ORDER 

 Karen Melnick 2 brought this action for judicial review after the 

Commissioner of Social Security denied her application for disability insurance 

benefits. The court vacated the Commissioner's decision and remanded the case 

to the Social Security Administration for further proceedings. Following remand, 

the Social Security Administration determined that Ms. Melnick was disabled 

awarded her $113,683 in past-due benefits.3 The court awarded counsel for the 

claimant, Jennifer L. Fisher, $7,733.90 for the services she provided pursuant 

 

1 Andrew Saul was automatically substituted as the defendant in this case pursuant to 

Federal Rule of Civil Procedure 25(d) when he became the Commissioner of Social 

Security. 

2 Zachary Ball was substituted as the plaintiff pursuant to Federal Rule of Civil 

Procedure 25(a)(1) after Karen Melnick died. [Doc. No. 41]. 

3 The claimant’s fee motion estimates the past due benefits amount was $113,712.70. 

The Commissioner argues the correct amount is $113,683 and the difference is 

attributable to a rounding error. This difference also affects the fee calculation, which 

is 25 percent of the past-due benefits award. Mr. Ball didn’t file a reply brief contesting 

the Commissioner’s calculation, so the court will use the Commissioner’s figures. 
2 

to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Ms. Fisher’s motion for 

authorization of attorney fees under 42 U.S.C. § 406(b) is now before the court. 

 An attorney who has successfully represented a claimant in federal court 

can receive “a reasonable fee for such representation, not in excess of twentyfive percent of the total past-due benefits to which the claimant is entitled by 

reason of such judgment.” 42 U.S.C. § 406(b)(1)(A); Gisbrecht v. Barnhart, 535 

U.S. 789, 792 (2002). While fees may be awarded under both the EAJA and 

Section 406(b), “an EAJA award offsets an award under Section 406(b).” 

Gisbrecht v. Barnhart, 535 U.S. at 796. 

 Ms. Fisher asks the court to authorize attorney fees in the amount of 

twenty-five percent of Ms. Melnick’s past-due benefits, or $28,420.75, less the 

$7,733.90 the court awarded her pursuant to the EAJA. This request is within 

both the parameters of Section 406(b) and the parties' contingent fee agreement. 

The government doesn't argue Ms. Fisher’s request is unreasonable but 

recognizes that it is within the court’s discretion to award the amount requested 

or reduce the fee award. 

The court must decide whether the attorney fees yielded by the parties' 

contingent fee agreement are reasonable. Gisbrecht v. Barnhart, 535 U.S. at 807. 

A court shouldn’t override the attorney-client contingent-fee agreement unless 

the resulting fee would be unreasonable. Id. at 808. A fee may be unreasonable 

“[i]f the attorney is responsible for delay” that causes an “accumulation of 
3 

benefits during the pendency of the case in court” or the “the benefits are large 

in comparison to the amount of time counsel spent on the case.” Id. 

Nothing in the record suggests that Ms. Fisher caused any delay in the 

adjudication of Ms. Melnick’s case and the benefit of her work was significant. 

Ms. Melnick’s application for social security disability benefits was denied by the 

agency and denied again by an ALJ after an administrative hearing. Ms. Fisher 

brought Ms. Melnick’s appeal to this court, the court remanded the case to the 

Social Security Administration, which awarded her substantial past-due 

benefits. 

Under the terms of their agreement, Ms. Melnick agreed that Ms. Fisher 

could elect to petition for up to 25 percent of all past due benefits in the event of 

a favorable outcome.4 The amount requested, $28,420.75 equates to an effective 

rate of $555.09 per hour (for 51.2 hours). The proposed fee award is within the 

bounds of the contingency-fee agreement between Ms. Melnick and Ms. Fisher 

and falls within the range of what courts in this district have deemed reasonable. 

See, e.g., Hill v. Comm'r of Soc. Sec., No. 1:11-CV-00134-SLC, 2016 WL 

2643360, at *4 (N.D. Ind. May 10, 2016) (granting a fee request equating to an 

effective rate of $810); Bianco v. Colvin, No. 3:14CV98, 2016 WL 1295926, at *3 

 

4 Ms. Melnick’s counsel at the administrative level was awarded $6,000 in fees pursuant 

to 42 U.S.C. § 406(a). The Supreme Court recently held that the statute’s 25 percent 

cap on fees applies only to fees for court representation, not to the aggregate fees of both 

court representation and representation at the administrative level. Culbertson v. 

Berryhill, 139 S. Ct. 517, 523 (2019). 
4 

(N.D. Ind. Apr. 4, 2016) (granting a fee request equating to an effective rate of 

$825); Ittel v. Colvin, No. 2:12-CV-096 JD, 2014 WL 4905638, at *2 (N.D. Ind. 

Sept. 30, 2014) (granting a fee request equating to an effective rate of $521); 

Timberlake v. Colvin, No. 3:11-CV-10 RLM, 2014 WL 793366, at *1 (N.D. Ind. 

Feb. 26, 2014) (granting a fee request equating to an effective rate of $696); Smith 

v. Astrue, No. 1:05-CV-00202, 2009 WL 35223, at *3 (N.D. Ind. Jan. 5, 2009) 

(granting a fee request equating to an effective rate of $550). The fee request is 

reasonable in light of the result achieved in this case, Ms. Fisher’s experience, 

and the contingent nature of the recovery. 

Following remand to the agency, the court awarded Ms. Fisher $7,733.90 

in fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Fee awards 

may be made under both the EAJA and Section 406(b), but the claimant's 

attorney “must refund . . . the amount of the smaller fee.” Gisbrecht v. Barnhart, 

535 U.S. at 796 (internal quotation marks omitted). Ms. Fisher acknowledges 

that Ms. Melnick is entitled to a refund of the $7,733.90 EAJA award Ms. Fisher 

received, so subtracts that from the award she requests. 

 Based on the foregoing, the court GRANTS motion for attorney fees 

pursuant to 42 U.S.C. § 406(b) [Doc. No. 35], and AWARDS fees to plaintiff's 

attorney Jennifer L. Fisher in the total amount of $20,686.85 to be paid directly 

to Jennifer L. Fisher of the Law Office of Jennifer L Fisher, P.O. Box 411, 

Marysville, KS 66508. 

SO ORDERED. 
5 

 ENTERED: July 16, 2019 

 /s/ Robert L. Miller, Jr. 

 Judge, United States District Court