United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Jeffrey Cole, Magistrate Judge
counsel has moved for approval of attorney's fees to be
paid out of the plaintiff's past-due benefits pursuant to
42 U.S.C. §406(b).
Commissioner agreed to remand this case upon initial review
by the district court prior to any briefing. [Dkt. ##13, 14].
On remand from this court, an Administrative Law Judge for
the Social Security Administration determined that plaintiff
was disabled and entitled to benefits, including $51, 379.00
in past-due benefits. Plaintiff and her counsel had a
contingency fee agreement whereby she would pay counsel 25%
of any award. While counsel does not inform the court what
the past due benefit amount was, he does say that his
contingency fee would come to $12, 844. [Dkt. #23, at Pars.
3, 9]. Despite this, counsel is moving for a discounted award
of $5, 689.12, after an offset/credit of $989.76 [Dkt. #23,
at 6], because he did not brief the case. [Dkt. # 23, at 4].
According to counsel's Summary of Attorney Hours,
that's an effective hourly rate of over $1, 200 per hour
[Dkt. ##23, at 3; 23-1]- an amount greater than the hourly
rate generally charged by senior lawyers in the Nation's
largest law firms
assesses a Section 406(b) fee request “by looking first
to the contingent-fee agreement, then testing it for
reasonableness.” Gisbrecht v. Barnhart, 535
U.S. 789, 808 (2002). In assessing the reasonableness of the
fee agreement, the district court should not start with the
lodestar calculation, but should instead consider “the
character of the representation and the results the
representative achieved.” Gisbrecht, 535 U.S.
at 808. “If the benefits are large in comparison to the
amount of time counsel spent on the case, a downward
adjustment is similarly in order.” Gisbrecht,
535 U.S. at 808. That's not the case here. While counsel
filed a Complaint, Complaints do not mean much in Social
Security cases. So, at first blush, a total recovery of over
$6, 500 seems like the kind of windfall courts are supposed
to guard against. Gisbrecht, 535 U.S. at 808. While
counsel assures us that his Complaint was not a
“boilerplate, ” the Complaint didn't really
accomplish anything as review of the docket shows. Indeed,
the Complaint does include boilerplate - almost necessarily
so - and while counsel's fee petition is six pages long,
the Complaint is just five. It would seem that more work went
into the fee petition than into the Complaint on which the
request for fees is based. In saying this, we do not mean in
the slightest to be critical or disparaging of counsel's
efforts. But those are the undeniable facts.
review of the docket also calls into question the amount of
work claimed. Counsel says he spent .4 hours reviewing court
Order(s) on June 27, 2017 [Dkt. # 23-1]. But as of June
27th, no Orders had yet been entered; the first
having been entered on June 30th. Maybe that was
an error and counsel spent that time on something else. But
compounding that error is the fact that counsel argues that
“[h]ad counsel been less experienced and efficient, and
had he spent more time on the case, his computed hourly rate
would have been lower. . . . Punishing counsel for efficiency
is what this Court would be doing if it cut the requested
fee.” [Dkt. # 23, Par. 22]. Again, counsel's
efficiency never entered into these proceedings. He filed a
Complaint and did nothing else. The court conducted an
initial review of the record and the ALJ's decision
without any briefing, and informed the Commissioner of issues
the court had with the decision. The Commissioner then
conducted a thoughtful review and chose to voluntarily
remand. Given that reality, it is not at all a question of
“efficiency.” In any event, the point is, even
given a reduced contingency rate of 13%, $6, 678.88 is a
substantial award given the circumstances.
counsel tells us his “work in the present case merits
an entire award of 13% of past due benefits . . .because of
his experience, skill, and particularly the risk he
assumed of no award at all.” [Dkt. # 23, ¶.
14](Emphasis supplied). But, “[g]eneral propositions do
not decide concrete cases.” Lochner v. New
York, 198 U.S. 45, 76 (1905)(Holmes, J., dissenting). It
must be recalled that the case was remanded by agreement of
the Commissioner after this court's initial review,
without any input from plaintiff's counsel. [Dkt. ##13,
14]. That being the case, it's not clear how
counsel's experience and skill were brought to bear or
made any difference in this case. Moreover, how this case
could be considered “difficult” or even “of
less than ordinary difficulty” as counsel describes it
[Dkt. # 23, at Par. 13] is anyone's guess because, again,
counsel didn't brief the case. As for the risk of no
reward, that is a factor to be considered - as it is in all
contingency fee cases. But it is not as significant and
surely not as decisive a factor as counsel suggests. See,
e.g., Dettloff v. Colvin, 2015 WL 3855332, at *1 (N.D.
Ill. 2015). While a factor, it is not the
only, or even controlling factor. Otherwise, we would have a
per se rule, not a discretionary judgment.
cases counsel cites as examples of similarly high fee awards
- Kirby v. Berryhill, 2017 WL 5891059 (N.D. Ill.
2017); Smith v. Colvin, 2014 WL 2829778 (N.D. Ill.
2014); Newman v. Colvin, 2014 WL 4913872 (N.D. Ill.
2014); and Reindl v. Astrue, 2012 WL 4754737 (N.D.
Ill. 2012) - all involved contested and fully briefed motions
for summary judgment. That crucial factor is simply ignored.
Thus, as yardsticks for the instant request, the cited cases
do not influence the outcome. Facts count. See the
cases cited in Silversun Indus., Inc. v. PPG Indus.,
Inc., 2017 WL 5127321, at *2 (N.D. Ill. 2017). Judges
are not free to ignore them. See, e.g., By Product Corp.
v. Armen-Berry Co., 608 F.2d 956, 960 (7th Cir. 1982);
Donald F. Duncan, Inc. v. Royal Tops Mfg. Co., 343
F.2d 655, 668 (7th Cir. 1965); Bassey v. City of
Huntington Woods, 344 Mich. 701, 74 N.W.2d 897, 899
(1956). Indeed, “to generalize is to
omit....”Donnell v. Herring-Hall-Marvin Safe
Co., 208 U.S. 267, 273 (1908). Thus, this case is closer to
cases like Jaaska v. Berryhill, 2019 WL 764644 (W.D.
Wis. 2019), where a stipulated remand garnered an attorney a
reduced award of $2, 363, 17 ($302 per hour). But even in
that case, counsel at least drafted a summary judgment motion
and negotiated the stipulated remand.
end, the instant fee petition does not accurately recount
what happened and thus does not support the requested award
of $6, 678.88. Thus, an overall award of $3000, less the
$989.76 offset/credit is an appropriate fee award here. It is
in keeping with the amount of effort that was required in
this case. As we said at the outset, in coming to
this conclusion, we do not in the slightest mean to denigrate
the skill or efforts of counsel. Far from it. But here, as in
all cases, realities must dominate the judgment.
Copperweld Corp. v. Independence Tube Corp., 467
U.S. 752, 774 (1984). “There is a real world as well as
a theoretical one.” Lee v. Illinois, 476 U.S.
530, 548 (1986).
 Northern District of Illinois Internal
Operating Procedure 22 prohibits listing the full name of the
Social Security applicant in an Opinion. Therefore, the
plaintiff shall be listed using only their first name and the
first initial of their last name.
 The technique of brief writing that
puts out of view the existence of principles and/or cases
that are central to a meaningful analysis has been rejected
by the Seventh Circuit. See e.g., Hill v. Norfolk &
Western Ry. Co.,814 F.2d 1192, 1198 (7th Cir.1987).
Accord, Fred A. Smith Lumber Company v. Edidin, 845
F.2d 750, 753 (7th Cir.1988). See also ...