"It is entirely appropriate for the commissioner or the court to raise, and for the court to consider whether a § 406(b) fee petition has been timely field." Moore v. Comm'r of Soc. Sec., No. 1:14-CV-00160-SLC, 2017 WL 3588066, at *3 (N.D. Ind. Aug. 21, 2017) (citing Richardson v. Astrue, No. CIV. 07-62-P-H, 2010 WL 2927269, at *1 (D. Me. July 20, 2010)). "A petition for fees under § 406(b)(1) must be brought within a reasonable time."
Section 406(b) "plainly vests the court with discretion to award a reasonable fee and determine what that fee is," O'Donnell v. Saul, 983 F.3d 950, 957 (7th Cir. 2020), and some courts have exercised their discretion to reduce or deny unreasonably delayed 406(b) fee requests, see, e.g., Moore v. Comm'r of Soc. Sec., No. 1:14-cv-00160-SLC, 2017 WL 3588066 (N.D. Ind. Aug. 21, 2017) (reducing a 406(b) request filed nine months after the benefits award to account for the prejudice to the client in receiving their EAJA refund); Hilbert v. Colvin, No. 4:13-cv-00089, 2016 WL 6071762 (S.D. Ind. Oct. 17, 2016) (denying attorney's 406(b) fee request filed one year after the benefits award).
In these instances, the undersigned Magistrate Judge cured any prejudice to the claimant by reducing Shull's fee award by the interest accumulated on the EAJA fee amount that Shull was required to refund to the claimant. See Ball v. Comm'r of Soc. Sec., No. 1:12-CV-00369-SLC, 2018 WL 2356213, at *5 (N.D. Ind. May 24, 2018) (directing the Commissioner "to deduct from the portion due to Shull, an amount equal to the interest on the remaining [amount] owed to [the claimant], as calculated pursuant to the statutory interest rate"); Moore v. Comm'r of Soc. Sec., No. 1:14-CV-00160-SLC, 2017 WL 3588066, at *4 (N.D. Ind. Aug. 21, 2017) (same); Thompson v. Comm'r of Soc. Sec., No. 1:14-CV-00282-SLC, 2017 WL 1509295, at *5 (N.D. Ind. Apr. 27, 2017) (same); Heintz v. Comm'r of Soc. Sec., No. 1:14-CV-00195-SLC, 2017 WL 510943, at *3 (N.D. Ind. Feb. 7, 2017) (same); Hill v. Comm'r of Soc. Sec., No. 1:11-CV-00134-SLC, 2016 WL 2643360, at *5 (N.D. Ind. May 10, 2016) (same); Blow v. Comm'r of Soc. Sec., No. 1:11-CV-00293-SLC, 2015 WL 4591655, at *4 (N.D. Ind. July 28, 2015) (same). Notably, as the Commissioner observes, District Judge Miller recently criticized Shull for "'creat[ing] a pattern of delay in similar cases . . . .'" (DE 47 at 4 (quoting Blanton v. Berryhill, No. 3:15-CV-44-RLM, 2018 WL 3373506, at *2 (N.D. Ind. July 10, 2018)).
This hourly rate is well below many section 406(b) awards approved by courts in this circuit. See, e.g., Moore v. Comm'r of Soc. Sec., No. 1:14-cv-160-SLC, 2017 WL 3588066, at *3 (N.D. Ind. Aug. 21, 2017) (awarding $5,978.30 for 31.30 hours of attorney work); Koester v. Astrue, 482 F. Supp. 2d, 1078, 1081-83 (E.D. Wis. 2007) (awarding $16,890 for 38.30 hours of attorney work). Duncan fully litigated plaintiff's case, he obtained favorable results for his client, and the contingent fee agreement supports the requested award.
In similar cases in which Mr. Shull delayed in bringing a section 406(b) motion, this court has held that a nine-month delay warranted a reduction of the portion of the attorney's requested award in an amount equal to the interest on the money rightfully due to the plaintiff that had been needlessly withheld for an excessive amount of time. See, e.g., Moore v. Comm'r of Soc. Sec., 2017 WL 3588066, at *3 (N.D. Ind. Aug. 21, 2017); Hill v. Comm'r of Soc. Sec., 2016 WL 2643360, at *5 (N.D. Ind. May 10, 2016) (holding that a nine-month delay in filing a § 406(b) request was unreasonable). Mr. Blanton received a letter from the Commissioner on October 8, 2016, which states that she has been withholding the $15,747.
This Court has previously concluded that a nine-month delay in filing a §406(b) request warranted a reduction of the portion of the attorney's requested award in an amount equal to the interest on the money rightfully due to the plaintiff that had been needlessly withheld for an excessive amount of time. See, e.g., Moore v. Comm'r of Soc. Sec., No. 1:14-CV-00160-SLC, 2017 WL 3588066, at *3 (N.D. Ind. Aug. 21, 2017); Hill v. Comm'r of Soc. Sec., No. 1:11-CV-00134-SLC, 2016 WL 2643360, at *5 (N.D. Ind. May 10, 2016) (holding that a nine-month delay in filing a §406(b) request was unreasonable). Here, Shull received a letter from the Commissioner dated February 1, 2017, which states that she has been withholding the $23,706.