United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB, DISTRICT JUDGE.
Melissa Driver filed this lawsuit in 2016, seeking review of
an administrative decision that denied her request for
disability benefits under the Social Security Act. After
plaintiff filed a motion for summary judgment, the parties
agreed to a remand for further proceedings before the
administrative law judge. After I granted the motion to
remand, the parties stipulated to an award under the Equal
Access to Justice Act of $6, 280.47 in attorney fees for
plaintiff's attorney, Dana Duncan, for the proceedings up
until that time. Dkt. ##13 and 18. However, Duncan did not
receive those fees, as they were taken to offset
plaintiff's pres-existing student loan debts. On remand,
an administrative law judge concluded that plaintiff was
disabled and entitled to past-due benefits of $43, 145.00.
plaintiff's attorney, Dana Duncan, seeks an award of
attorney fees of $11, 213.00, under 42 U.S.C. § 406(b).
Dkt. #21. Duncan seeks $10, 786.25, which is 25 percent of
plaintiff's past-due benefits award of $43, 183.50, in
accordance with § 406(b) and the contingency agreement
signed by plaintiff. He seeks an additional $426.75, which is
25 percent of the $1, 707.00 in supplemental security income
that plaintiff received between August 2012 and December
2012. The commissioner does not oppose Duncan's request
for $10, 786.25, but objects to the additional $426.75. For
the reasons below, I am awarding Duncan $10, 786.25 in
42 U.S.C. § 406(b), the court may award a prevailing
plaintiff's attorney a reasonable fee, but no greater
than 25 percent of past-due benefits. Gisbrecht v.
Barnhart, 535 U.S. 789, 792 (2002). See also McGuire
v. Sullivan, 873 F.2d 974, 980 (7th Cir. 1989) (“A
court may award a fee up to that provided in the
[contingency-fee] contract so long as the court has reviewed
its reasonableness.”). When evaluating a request for
fees under § 406(b) for reasonableness, a court may
consider "the character of the representation and the
results the representative achieved.”
Gisbrecht, 535 U.S. at 808. In Gisbrecht,
the Court identified two instances in which a fee reduction
would be appropriate. First, “[i]f the attorney is
responsible for delay, . . . a reduction is in order so that
the attorney will not profit from the accumulation of
benefits during the pendency of the case in court.”
Id. Second, if the benefits are large in comparison
to the amount of time counsel spent on the case, a downward
adjustment is similarly in order. Id. Courts in this
circuit have considered factors such as the attorney's
experience, reputation and ability as well as awards in
similar cases. Westlund v. Berryhill, No.
15-cv-450-jdp, 2017 WL 2389724, at *1 (W.D. Wis. June 1,
2017) (citing Hodges-Williams v. Barnhart, 400
F.Supp.2d 1093, 1099 (N.D. Ill. 2005), and McGuire,
873 F.2d at 979, 983)).
initial matter, I agree with the commissioner that Duncan is
not entitled to receive a payment of $426.75 from
plaintiff's 2012 supplemental security income award. In
some cases, counsel can be awarded fees based on the
supplemental security income a claimant receives during the
five-month period in which the claimant is waiting for
disability benefits. Here, however, plaintiff was entitled to
disability benefits in July 2011, before she became
entitled to supplemental security income in August 2012.
Thus, there were no months in which plaintiff was entitled to
any supplemental security income not offset by the disability
insurance benefits in the same month under the windfall
provision of 42 U.S.C. § 1320a-6(a). Duncan is not
entitled to recover fees based on both awards.
to whether Duncan's request for $10, 786.25 is
reasonable, I note that Duncan includes time spent in the
administrative proceedings in his fee requests. As has been
explained repeatedly to Duncan, § 406(b) applies only to
attorney fees related to court proceedings. E.g,
Beach v. Berryhill, No. 14-cv-857-bbc, 2017 WL
3275546, *2 (W.D. Wis. Aug. 1, 2017) (“It is unclear
why, nine years after this court held otherwise, Duncan
continues to try to use § 406(b) to obtain fees for time
spent in administrative proceedings.”); Heise v.
Colvin, No. 14-cv-739-jdp, 2016 WL 7266741, at *2 (W.D.
Wis. Dec. 15, 2016) (Peterson, J.) (“[U]nder § 406
each tribunal may award fees only for the work done before
it[, ] . . . [s]o I will limit my reasonableness evaluation
to Duncan's work before this court, and he can pursue the
rest of his contingency fee from the Commissioner.”)
(citations and internal quotations omitted); Stemper v.
Astrue, No. 04-cv-838-jcs, 2008 WL 2810589, at *1 (W.D.
Wis. July 14, 2008) (Crabb, J.) (“§ 406(b) governs
fees for representation in court and not in the
administrative proceedings.”). Accordingly, I am
disregarding Duncan's records and arguments relating to
time spent at the administrative level.
records show that he spent 22.80 hours on matters related to
court proceedings, including the preparation of a motion for
summary judgment, and his paralegal spent another 22.15 hours
on those matters. Dkt. #21-5. Although it appears to be an
open question in this circuit whether paralegal time may be
considered in assessing the reasonableness of a fee request
under § 406(b), I see no reason to exclude it.
Richlin Secretary Service Co. v. Chertoff, 553 U.S.
571, 581 (2008) (reasonable attorney fees under Equal Access
to Justice Act includes paralegal time); Missouri v.
Jenkins, 491 U.S. 274, 285 (1989) (reasonable attorney
fees under 42 U.S.C. § 1988 includes paralegal time).
Awarding Duncan $10, 786.25 for this combined time would be
the equivalent of a rate of approximately $325 an hour for
Duncan and $150 an hour for his paralegal. In light of
Duncan's experience, the risk he incurred and the amounts
awarded by other courts in similar cases in both this court,
e.g., Stemper, 2008 WL 2810589, at *2 (approving
effective rate of $666), and the courts cited in Duncan's
brief, I conclude that the amount is reasonable.
ORDERED that Dana Duncan's motion for attorney fees, dkt.
#21, is GRANTED IN PART. Duncan is awarded $10, 786.25 ...