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May 14, 2004.

JO ANNE B. BARNHART, Commissioner of Social Security, Defendant

The opinion of the court was delivered by: MORTON DENLOW, Magistrate Judge


This case arises at the intersection of the Equal Access to Justice Act ("EAJA") and the Social Security Act ("SSA"). Caught at the crossroads of these two important pieces of legislation are those attorneys who sacrifice the greater monetary gains available in certain areas of the law in order to advocate on behalf of those less fortunate both in wealth and in health. The EAJA was amended in 1985 to prevent claimants' attorneys from receiving a double recovery for the "same work." Consequently, an attorney must refund EAJA fees against fees received under the SSA for the "same work." The issue presented is to define the meaning of the term "same work."

This issue is raised in the Petition for Attorney Fees Pursuant to § 206(b)(1) of the SSA, 42 U.S.C. § 406(b)(1), filed by Petitioner Frederick J. Daley, Jr. ("Petitioner"), the attorney for Plaintiff Frances A. Kopulos ("Plaintiff"), requesting $21,151.00 in fees. Petitioner received two EAJA fees in connection with the prosecution of Plaintiff's claim. The first EAJA fee totaled $9,853.00. The second EAJA fee totaled $5,000.00. Petitioner now petitions for an interim SSA award of $21,151.00. Petitioner contends that he must refund only $5,000.00 in EAJA fees against the SSA award. Defendant Jo Anne B. Barnhart, Commissioner of Social Security ("Commissioner"), contends that Petitioner must refund $14,853.00, the total amount of EAJA fees awarded throughout the existence of this claim. For the following reasons, this Court grants Petitioner's petition for fees in the amount of $21,151.00, but holds that a $14,853.00 refund to Plaintiff is required.


  Plaintiff applied for disability insurance benefits ("DIB") in 1994. Petitioner has represented Plaintiff throughout the entire course of the proceedings. Def. Resp. at 1. Plaintiff entered into a Social Security Contingent Fee Contract (the "Contract") with Petitioner. Pet. Ex. A.

  In 1999, after administrative denials of her DIB application, Petitioner secured a remand order from the district court solely for the Administrative Law Judge ("ALJ") to consider the findings of state agency physicians. Kopulos v. Apfel, No. 98 C 4115, 1999 WL 33251456, at * 1 (N.D. Ill. Aug. 4, 1999). For work performed by Petitioner in that action, the district court awarded $9,853.00 pursuant to the EAJA. Kopulos v. Apfel, No. 98 C 4115, 1999 WL 1565201, at * 1-3 (N.D.Ill. Nov. 15, 1999).

  Following that remand, in 2001 a different ALJ conducted a hearing and found Plaintiff ineligible for DIB. Plaintiff then filed the present civil action before this Court. Petitioner succeeded in securing a remand from this Court, which ordered further proceedings because the ALJ made an improper credibility determination. Kopulos v. Barnhart, 215 F. Supp.2d 996 (N.D. Ill. 2002). For his work before this Court, Petitioner requested EAJA fees in the amount of $9,906.38. Of the requested amount, Petitioner was awarded $5,000.00 in EAJA fees, pursuant to a settlement worked out between Petitioner and the Commissioner. Kopulos v. Barnhart, 01 C 4881 (N.D. Ill. minute order entered Nov. 14, 2002).

  Following the second remand, the ALJ found Plaintiff and her children eligible for social security benefits commencing March 1, 1992, in the amount of $84,604.00 in past-due benefits and $720.00 a month prospectively. The Commissioner has notified Plaintiff that she has withheld $21,151.00, that is 25% of those past-due benefits, for direct payment of any approved attorney fee under the SSA. Petitioner has agreed to refund the $5,000.00 EAJA award granted by this Court. The Commissioner, however, submits that Petitioner should also refund the additional $9,853.00 EAJA award granted as a result of the first remand in 1999. The question is whether the first EAJA award in this claim was granted for the "same work" as the SSA fees being requested in this petition.



  On a question of statutory construction, a court must determine congressional intent. Dole v. United Steel Workers of Am., 494 U.S. 26, 35 (1990). Proper statutory construction requires that the analysis begin with the language of the statute. Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 450 (2002). A court must "determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case." Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997). The determination ceases if the language at issue is unambiguous and there is a coherent and consistent statutory scheme. Id. Whether statutory language is plain or ambiguous "is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole." Id. at 341.

  To interpret the language itself, the language must be given its most natural reading and a commonsense view of its normal meaning. See Dole, 494 U.S. at 35-36. "[S]trict construction of statutory language `is to be avoided when the result would be senseless or clearly at odds with the evident purpose of the statute.' " United States v. Sanapaw, No, 03-2786, 2004 WL 885723, at *2 (7th Cir. Apr. 27, 2004). When viewing the language within its specific context, the words surrounding it should be considered, but a single sentence or clause does not outweigh the law as a whole or its object and policy. Id. When looking at the broader context of the statute, the legislative history of the statute should be considered, but absent a clearly expressed legislative intention to the contrary, the language must be regarded as conclusive. Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108(1980). This case presents an issue of first impression in the Seventh Circuit on the meaning of the term "same work" within the interplay between the SSA and the EAJA.


  Attorney's fees for representing individuals in social security cases are governed by 42 U.S.C. § 406. Section 406(a) governs fees for representation in administrative proceedings; § 406(b) controls fees for representation in federal district court. Gisbrecht v, Barnhart, 535 U.S. 789, 794 (2002). For representation of a benefits claimant at the administration level, an attorney may file a fee petition or a fee agreement. 42 U.S.C. § 406(a); 20 C.F.R. § 404.1725(b). As an alternative to fee petitions, the Social Security Act, as amended in 1990, permits contingent-fee agreements filed with the agency in advance of a ruling on the claim for benefits. 42 U.S.C. § 406(a)(2)-(4). There are limits on the amounts that can be awarded. Id. § 406(a)(2)(A)(ii).

  For proceedings in court, Congress provided for fees in the event of a "judgment favorable to a claimant." Id. § 406(b)(1)(A). As part of its judgment, a court may allow "a reasonable fee . . . not in excess of 25 percent of the . . . past due benefits" awarded to the claimant. Id. Benefit amounts figuring in the fee calculation are limited to those past-due. Attorneys may not receive ...

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