Opinion
1:19-CV-238-HAB-JPK
06-22-2021
KATHY L. LEWIS, Plaintiff, v. ANDREW M. SAUL, Commissioner of Social Security Administration, Defendant.
FINDINGS, REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE PURSUANT TO 28 U.S.C. § 636(B)(1)(B) &(C)
JOSHUA P. KOLAR MAGISTRATE JUDGE..
This matter is before the Court on a Motion for Authorization of Attorney Fees Pursuant to 42 U.S.C. Section 406(b) [DE 25], filed by Plaintiff's Attorney, Ann M Trzynka, on June 5, 2021. The Motion seeks a net attorney fee award pursuant to § 406(b) in the amount of $4,065.72. Defendant Commissioner filed a Response [DE 28] stating no objection to the award sought.
On September 16, 2019, District Court Judge Holly A. Brady entered an Order [DE 8] referring this matter pursuant to 28 U.S.C. § 636(b)(1)(B) to the undersigned Magistrate Judge for a report and recommendation on Plaintiff's social security appeal and any related motions for fees. This Report constitutes the undersigned Magistrate Judge's combined proposed findings and recommendations pursuant to 28 U.S.C. § 636(b)(1)(C) on the Motion for Authorization of Attorney Fees Pursuant to 42 U.S.C. Section 406(b) [DE 28]. For the following reasons, the Court recommends that the District Court grant the Motion and award a net fee of $4,065.72.
PROPOSED FINDINGS AND RECOMMENDATION
Plaintiff filed this action on May 31, 2019, seeking review of the Commissioner's prior decision denying her claim for disability insurance benefits. (ECF No. 1). On August 28, 2020, the District Judge reversed the Commissioner's decision and remanded the case for further proceedings. (ECF Nos. 19-20). The Memorandum submitted in support of the instant Motion explains that an ALJ thereafter issued a favorable decision on Plaintiff's claim, which resulted in an award of past due benefits totaling $55,863.00, after reductions for social security retirement benefits received by Plaintiff. (ECF No. 26, at 1-2; see also Notice of Award at ECF No. 26-1). The instant Motion now seeks a net attorney fee pursuant to § 406(b) in the amount of $4,065.72. According to the Motion and supporting Memorandum, this amount represents 25% of the past-due benefits awarded to Plaintiff by the Social Security Administration ($13,965.72), less $9,900.00 in fees previously paid to Plaintiff's Attorney pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). (ECF No. 25; see also ECF No. 24; ECF No. 26, at 1-2).
The Supporting Memorandum also attaches a May 2019 Federal District Court Fee Agreement between Plaintiff and her Attorney, Ann M Trzynka, which provides for Plaintiff's Attorney to collect a fee of up to 25% of the past benefits awarded to Plaintiff as a result of her appeal to federal court and/or any related remand. (ECF No. 26-2). Section 406(b) similarly allows “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.” 42 U.S.C. § 406(b). Thus, pursuant to Section 406(b) and Plaintiff's May 2019 Federal District Court Fee Agreement (ECF No. 26-2), Plaintiff's Attorney may collect up to 25% of the $55,863.00 in past benefits awarded to Plaintiff on remand, provided that amount represents “a reasonable fee for such representation.” 42 U.S.C. § 406(b).
According to the instant Motion, a 25% attorney fee in this case amounts to a total fee of $13,965.72. (ECF No. 25; see also No. 26, at 1-2). The Motion also attaches an Affidavit detailing the services performed by Plaintiff's Attorney in connection with her appeal to this Court, which led to the past benefits awarded on remand. (ECF No. 25-1). This Court has considered those services, which consumed 49.1 hours at an hourly rate of $284.43 (ECF No. 26, at 5), and finds the total fee of $13,965.72 for such services to be reasonable in this case. Thus, having reviewed the Motion (ECF No. 25), supporting Memorandum (ECF No. 26), and Affidavit detailing the services performed for Plaintiff (ECF No. 25-1), and noting the Commissioner's lack of objection (ECF No. 27), the Court finds $13,965.72 “a reasonable fee for such representation” under Section 406(b). The Court therefore recommends that the District Court award this fee less the $9,900 already awarded to Plaintiff's Attorney under the EAJA (ECF No. 24), resulting in a net fee of $4,065.72 remaining payable pursuant to Plaintiff's May 2019 Federal District Court Fee Agreement (ECF No. 26-2) and Section 406(b). (See ECF No. 26, at 1-2).
The instant Motion also explains that Plaintiff's Attorney intends to seek a fee from the agency under 42 U.S.C. § 406(a) for representing Plaintiff before the Social Security Administration, in the amount of $6,000, less applicable deductions. (ECF No. 26, at 2). This Report expresses no view on any such request.
Accordingly, having reviewed the instant motion and exhibits, and noting the lack of objection by the Commissioner, the Court recommends that the District Court grant the Motion for Authorization of Attorney Fees Pursuant to 42 U.S.C. Section 406(b) [DE 25], and award a net fee of $4,065.72 to Plaintiff's Attorney pursuant to 42 U.S.C. § 406(b). The Court further recommends that the District Court order that, provided Plaintiff does not owe a debt subject to federal offset, the agency should direct payment of the $4,065.72 fee to Plaintiff's Attorney, Ann M Trzynka, from the balance of past-due benefits withheld from Plaintiff, and then release any remaining benefits as appropriate.
CONCLUSION
Based on the foregoing, the Court RECOMMENDS that the District Court grant the Motion for Authorization of Attorney Fees Pursuant to 42 U.S.C. Section 406(b) [DE 25], and that a net fee of $4,065.72 be awarded to Plaintiff's Attorney, pursuant to 42 U.S.C. § 406(b).
This Report and Recommendation is submitted pursuant to 28 U.S.C. § 636(b)(1)(C). Pursuant to 28 U.S.C. § 636(b)(1), the parties shall have fourteen (14) days after being served with a copy of this Recommendation to file written objections thereto with the Clerk of Court. The failure to file a timely objection will result in waiver of the right to challenge this Recommendation before either the District Court or the Court of Appeals. Willis v. Caterpillar, Inc., 199 F.3d 902, 904 (7th Cir. 1999); Hunger v. Leininger, 15 F.3d 664, 668 (7th Cir. 1994); The Provident Bank v. Manor Steel Corp., 882 F.2d 258, 260-261 (7th Cir. 1989); Lebovitz v. Miller, 856 F.2d 902, 905 n.2 (7th Cir. 1988).
So ORDERED.