ROBERT L. MILLER, JR., District Judge.
Charles B Tidwell, Jr. brought this action for judicial review after the Commissioner of Social Security denied his application for disability insurance benefits. The court affirmed the Commissioner's decision and, while the case was pending on appeal, the Commissioner requested remand for further administrative proceedings, at which Mr. Tidwell prevailed and was awarded $74,244 in past-due benefits. Mr. Tidwell has an eligible auxiliary who was also awarded benefits. The court awarded Mr. Tidwell's counsel, Barry A. Schultz, $2,751.56 for the services he provided pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Mr. Schultz's motion for authorization of attorney fees under 42 U.S.C. § 406(b) is now before the court.
An attorney who has successfully represented a claimant in federal court may receive "a reasonable fee for such representation, not in excess of twenty-five percent of the total past-due benefits to which the claimant is entitled by reason of such judgment." 42 U.S.C. § 406(b)(1)(A);
Mr. Schultz asks the court to authorize attorney fees in the amount of $16,828.50, which represents twenty-five percent of Mr. Tidwell's and his auxiliary's past-due benefits, less the $6,000 he has requested in administrative fees for work performed before the agency. This request is within both the parameters of Section 406(b) and the parties' contingent fee agreement. The government doesn't objected to Mr. Schultz's request.
The court must now decide whether the attorney fees yielded by that agreement are reasonable.
Nothing in the record suggests that Mr. Schultz caused any delay in the adjudication of Mr. Tidwell's case and while Mr. Schultz and his firm only spent 11.3 hours of work on the case, that is evidence of his effectiveness, rather than an indicia of unreasonableness. Mr. Tidwell's application for social security disability benefits was denied by the agency and denied again by an ALJ after an administrative hearing. After this court affirmed the ALJ's decision, Mr. Tidwell appealed this court's decision and retained Mr. Schultz as counsel. While the appeal was pending and before any briefing was filed in the court of appeals, Mr. Schultz engaged in settlement discussions with counsel for the Commissioner and the Commissioner agreed to request remand to the agency, where Mr. Tidwell and his auxiliary were awarded substantial past-due benefits.
Under the terms of their agreement, Mr. Tidwell agreed that Mr. Schultz could elect to petition for up to 25 percent of all past due benefits in the event of a favorable outcome. The proposed fee award is within the bounds of the contingency-fee agreement between Mr. Tidwell and Mr. Schultz and within the range found reasonable by other courts. See, e.g.,
Following remand to the agency, the court awarded Mr. Schultz fees in the amount of $2,751.56 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412. Fee awards may be made under both the EAJA and Section 406(b), but the claimant's attorney must refund the amount of the smaller fee.
Based on the foregoing, the motion for attorney fees pursuant to 42 U.S.C. § 406(b) [Doc. No. 49] is GRANTED, and the court AWARDS fees to plaintiff's attorney Barry A. Schultz in the total amount of $16,828.50 paid directly to Barry A. Schultz of Law Offices of Barry A Schultz PC, 1601 Sherman Ave, Ste 500, Evanston, IL 60201. The Court further ORDERS Attorney Schultz to refund Mr. Tidwell the sum of $2,751.56, which represents the amount of EAJA fees already paid to Mr. Schultz and now credited to Mr. Tidwell.
SO ORDERED.