UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA HAMMOND DIVISION AT LAFAYETTE

HEIDI REEF,

Plaintiff,

v. CAUSE NO.: 4:19-CV-21-TLS

ANDREW M. SAUL, Commissioner of the Social Security Administration,

Defendant.

OPINION AND ORDER

This matter is before the Court on the Plaintiff’s Motion for an Award of Attorney Fees Under 42 USC 406(b) [ECF No. 20], filed on April 7, 2021, moving this Court for an Order awarding attorney’s fees pursuant to

(b). The Defendant has filed a Response to Plaintiff’s Motion for Attorney Fees Pursuant to

(b) [ECF No. 21] indicating that it neither supports nor opposes the Plaintiff’s Motion. For the reasons stated below, the Plaintiff’s Motion is GRANTED. BACKGROUND On June 8, 2015, the Plaintiff filed an application for disability insurance benefits, alleging disability beginning on April 13, 2015. Apr. 3, 2020 Op. & Order 1, ECF No. 16. The Social Security Administration initially denied the Plaintiff’s applications, and again on reconsideration.

An ALJ also denied the Plaintiff’s application, finding she was not disabled.

On March 8, 2019, the Plaintiff filed a Complaint [ECF No. 1] in which she sought reversal of the Commissioner’s final decision. On April 3, 2020, the Court reversed and remanded this case for further proceedings. Apr. 3, 2020 Op. & Order. Ultimately, the Social Security Administration issued a Notice of Change in Benefits [ECF No. 20-3] in which it stated that the Plaintiff is entitled to past-due benefits in the amount of $53,187.50 and awarded $6,000 in attorney fees under

(a). See Notice 1, ECF No. 20-3. The Plaintiff filed a Motion for an Award of Attorney Fees Under 42 USC 406(b) [ECF No. 20] on April 7, 2021, requesting the Court to award the Plaintiff’s counsel $7,296.87 in § 406(b)

attorney’s fees. Pl.’s Mot. 1, ECF No. 20. When added to the $6,000 counsel has already been paid by the Social Security Administration under § 406(a), this would amount to an attorney’s fee award of $13,296.87. Id. at 3. This amount is based on the retainer agreement between the Plaintiff and her attorney. See Social Security Disability and/or SSI Contingent Fee Agreement 1, 4, ECF No. 20–2. The Court previously awarded counsel $4,500 in attorney’s fees pursuant to the Equal Access to Justice Act (EAJA), see May 6, 2020 Op. & Order, ECF No. 19, and counsel indicates that she will return the EAJA fees if the § 406(b) Motion is granted, see Pl.’s Mot. 4; see also Teachworth v. Saul, No. 3:17-CV-275,

, at *1 (N.D. Ind. Apr. 9, 2020) (“Counsel cannot recover fees under both the EAJA and § 406(b), though, so they must either refund the EAJA award

or subtract that amount from the § 406(b) request.” (citing Gisbrecht v. Barnhart,

(2002))). ANALYSIS The Plaintiff’s counsel requests $7,296.87 in attorney’s fees pursuant to 42 U.S.C § 406(b). “The Social Security Act allows for a reasonable fee to be awarded both for representation at the administrative level, see

(a), as well as representation before the Court, see 42 U.S.C § 406(b).” Hoover v. Saul, No. 1:16-CV-427,

, at *1 (N.D. Ind. July 22, 2019) (citing Culbertson v. Berryhill,

(2019)). “Under § 406(b), the Court may award a reasonable fee to the attorney who has successfully represented the claimant in federal court, not to exceed twenty-five percent of the past-due benefits to which the social security claimant is entitled.” Id. (citing

(b)(1)(A); Gisbrecht,

). “The reasonableness analysis considers the ‘character of the representation and the results achieved.’”

at *2 (citing Gisbrecht,

). Reasons to reduce an award include an attorney’s unjustifiable delay or if the past-due benefits are large in comparison to the amount of time an

attorney has spent on a case. Gisbrecht,

. Likewise, “an award of EAJA fees under [

] offsets an award under § 406(b).” Hoover,

, at *1 (citing Gisbrecht,

); see also Teachworth,

, at *1 (“Counsel cannot recover fees under both the EAJA and § 406(b), though, so they must either refund the EAJA award or subtract that amount from the § 406(b) request.” (citing Gisbrecht,

)). In this case, the requested amount in attorney’s fees is less than the maximum amount provided by the contingency agreement. Social Security Disability and/or SSI Contingent Fee Agreement 1, 4. The Plaintiff’s counsel represents that 23.6 attorney hours were spent in federal court on this case, which results in an effective hourly rate of $309. See Pl.’s Mot. 3. Such an hourly

rate is reasonable given the contingent nature of this case. See Kirby v. Berryhill, No. 14-CV-5936,

, at *1–2 (N.D. Ill. Nov. 29, 2017) (awarding attorney’s fees with an hourly rate of $1,612.28 and citing cases supporting the court’s holding); Heise v. Colvin, No. 14-CV-739,

, at *2 (W.D. Wis. Dec. 15, 2016) (“This results in an effective hourly rate of just over $1,100, appropriately high to reflect the risk of non-recovery in social security cases . . . .”); see also Zenner v. Saul, 4:16-CV-51,

, at *2 (N.D. Ind. Apr. 8, 2020) (awarding attorney’s fees with an hourly rate of $1,167.28); Koester v. Astrue, 482 F. Supp 2d 1078, 1083 (E.D. Wis. 2007) (collecting cases showing that district courts have awarded attorney’s fees with hourly rates ranging from $400 to $1,500). CONCLUSION For the reasons stated above, the Court GRANTS the Plaintiff’s Motion for an Award of Attorney Fees Under 42 USC. 406(b) [ECF No. 20] and AWARDS attorney’s fees under

(b) in the amount of $7,296.87. The Court ORDERS the Plaintiff’s attorney to refund to the Plaintiff the $4,500 in EAJA fees previously awarded in this case.

SO ORDERED on May 14, 2021. s/ Theresa L. Springmann JUDGE THERESA L. SPRINGMANN UNITED STATES DISTRICT COURT