Security prior to the time of the Commissioner's determination
regarding the claim.” 42 U.S.C. § 406(a) (2) (A) (1). In contrast,
section 406(b), which governs attorneys’ fee awards for services
provided in the district court, contains no such provision.
Thus, the fact that Mr. Daley cannot produce a signed
contingency-fee agreement is really immaterial.

Having said that, it is true that a signed contingency fee
agreement can be useful in determining what percentage of the
award should go to the attorney. See Gisbrecht, 535 U.S. at 807
(contingency fee agreements are the “primary means by which fees
are set for successfully representing Social Security benefits
claimants in court.”). Here, the agreement - whether or not it
was ultimately signed by Ms. Yonts - called for an award of fees
in an amount equal to 25% of any award of past-due benefits.
This is consistent with what section 406(b) would allow. And, to
be sure, if Mr. Daley could show that Ms. Yonts signed the
contingency fee agreement he prepared for her, the Court would
award him 25% of the benefit award (less the EAJA award). See,
e.g., McGuire v. Sullivan, 873 F.2d 974, 979, 981 (7th Cir. 1989
(a court should “defer to the parties’ intentions where
reasonable; the “contingency percentage . . . is negotiated
privately between the attorney and the claimant” and the

“percentage of the award agreed to by the parties should take


fee arrangement, he admits that he is unable to provide the Court
with a copy of the executed contingency fee agreement. As an
initial matter, the Court must ask whether that matters - is Mr.
Daley entitled to what amounts to a contingent fee award, given
that he has not produced a signed contingency-fee agreement?
Although there is some question as to whether Ms. Yonts signed
the agreement, which called for a contingency fee payment of 25%
of any past-due benefits awarded, it is clear that Mr. Daley and
Ms. Yonts discussed this type of fee arrangement and that Mr.
Daley accepted the case on this basis. See Petition for Attorney
Fee Pursuant to §206(b) (1), 97. Indeed, the government, which
acts as Ms. Yonts’ trustee in these proceedings, has not
challenged Mr. Daley’s entitlement to fees; it merely asked that
the award be limited to what is reasonable. See Defendant's
Response to Petition for Attorney Fee Pursuant to § 206(b) (1).
More importantly, the statute does not require that Mr.
Daley produce a signed contingency fee agreement before he can
recover fees under the statute. Section 406(a), which governs
the fees for representation in the administrative proceedings
requires that “an agreement between the claimant and another
person regarding any fee to be recovered by such person to
compensate such person for services with respect to the claim

{must be] presented in writing to the Commissioner of Social


account of the risk, as well as the ability of the attorney and
the estimated hours of legal work that the claim will require.”).
Because the record is somewhat unclear as to whether Ms. Yonts
agreed to the 25%, the Court is unwilling to award that amount
without first making an independent assessment of reasonableness,
which requires the Court to consider “the character of the
representation and the results the representation achieved.”
Gisbrecht, 535 U.S. at 808.

In assessing reasonableness in this context, the Court must
be mindful that, “({w]ithout the greater incentive for attorneys
to take these cases stemming from the potential for an enhanced
fee payment, claimants who have difficult cases and who cannot
afford to guarantee payment might not be able to secure
representation.” McGuire, 873 F.2d at 980. Thus, to the extent
a fee award of $15,194.26 for 35.5 hours of attorney time seems a
little high, the Court finds that it is reasonable, considering
the relative risk of non-payment Mr. Daley accepts upon pursuing
these Social Security matters. As a policy matter, the Court
believes that fully compensating attorneys who undertake Social
Security cases will result in a greater number of claimants
rightfully receiving benefits that they were otherwise denied.

Additionally, there is no question that, but for the results

achieved by Mr. Daley, Ms. Yonts would not have received any


IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

PATRICIA YONTS,
Case No. 03 C 3420
Plaintiff,
v.

Commissioner of Social

)
)
)
)
)
MICHAEL J. ASTRUE, ) Magistrate Judge Arlander Keys
)
Security, )

)

)

Defendant.

MEMORANDUM OPINION AND ORDER

Patricia Yonts applied for survivor's benefits as a disabled
adult child on December 11, 2000, after her mother died. At that
time, Ms. Yonts was almost 43 years old. The Social Security
Administration denied her application initially on December 19,
2000 and the decision was affirmed on January 17, 2001. Later
that year, Ms. Yonts requested a hearing before an Administrative
Law Judge (ALJ), which was held on December 7, 2001. The ALJ
issued her decision on February 21, 2002, finding that Ms. Yonts
was not entitled to benefits. The ALJ’s decision became the
final agency decision when the Appeals Council denied review on
March 26, 2003. Subsequently, Ms. Yonts filed suit in the United
States District Court, seeking review of the decision to deny her
benefits. The parties consented to proceed before a United
States Magistrate Judge, and the case was reassigned to this

Court on September 9, 2003.


benefits. Ms. Yonts’ application for benefits was denied by the
ALJ and the Appeals Council denied a review of her claim, making
the decision final. Yet, with Mr. Daley representing her in this
Court, she prevailed on summary judgment and won a remand of her
case for further administrative proceedings. Had he not done so,
the Commissioner would not have reopened her case, and she would
not have been awarded any benefits. Accordingly, the Court will
award counsel fees as requested.
Conclusion

For the reasons set forth above, the Court grants the
petition for attorney’s fees filed by Mr. Daley and awards fees
under the Social Security Act in the amount of $11,394.26. This
award is to be paid directly to Mr. Daley and Daley, DeBofsky &
Bryant.

Dated: December 11, 2007

ENTER:
dere. toys
ARLANDER KEYS U

United States Magistrate Judge


In this Court, Ms. Yonts was represented by Frederick J.
Daley, Jr. and his law firm, Daley, DeBofsky & Bryant. Based
upon briefs written by Mr. Daley and his firm, on May 4, 2004,
this Court issued a decision granting summary judgment in favor
of Ms. Yonts and remanding her case to the Commissioner for
further proceedings. Shortly after Mr. Daley obtained a
favorable result for Ms. Yonts in this court, she fired him.

Back in the social security administration, Ms. Yonts obtained
new counsel, whom she also fired in short order. Ultimately, she
appeared pro se before the Appeals Council, where she was awarded
$60,777.05 in past-due benefits.

Mr. Daley now petitions this Court for approval of an award
of attorneys fees pursuant to Section 206(b) (1) of the Social
Security Act, 42 U.S.C. § 406(b). Specifically, Mr. Daley argues
that he should be entitled to 25% of the past due benefits
awarded to Ms. Yonts, which would total $15,194.26. Mr. Daley
acknowledges that he has already received attorneys’ fees in the
amount of $3,800; this amount was awarded, by stipulation, under
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.

Thus, after deducting the amount of the EAJA award, Mr. Daley
requests attorneys’ fees in the amount of $11,394.26, to be paid
from Ms. Yonts’ past-due benefits.

The relevant fee statute, 42 U.S.C. § 406, “deals with the


administrative and judicial review stages discretely: § 406(a)
governs fees for representation in administrative proceedings; §
406(b) controls fees for representation in court.” Gisbrecht v.
Barnhart, 535 U.S. 789, 794 (2002). These two provisions
“establish the exclusive regime for obtaining fees for successful
representation of Social Security benefits claimants.” Id. at
794-795. The statute instructs that “[w]henever 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). Payment is to be
made “out of, and not in addition to, the amount of such past-due
benefits.” Id, “Attorneys who represent claimants in social
security proceedings thus are permitted to seek recovery under
both the EAJA and the SSA and to keep the larger fee so long as
the smaller fee for the ‘same work’ is refunded to the claimant.”
Kopulos v. Barnhart, 318 F. Supp.2d 657, 663-664 (N.D. Ill.
2004) (citing H.R.Rep. No. 99-120{I), at 20, reprinted in 1985
U.S.C.C.A.N. 132, 149}.

At the outset, the Court notes that, although Mr. Daley has

represented to the Court that he and Ms. Yonts had a contingency