Milton v. Commissioner of Social Security

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF INDIANA FORT WAYNE DIVISION DIONNE M. MILTON, ) ) Plaintiff, ) ) Case No. 1:25-CV-00125 v. ) ) FRANK BISIGNANO ) Commissioner of Social Security ) ) Defendant. ) OPINION AND ORDER This matter is before the court on the First Motion for Attorney Fees [DE 25] filed by Forbes Rodman PC, counsel for the plaintiff, Dionne M. Milton, on May 14, 2026. Defendant filed a Response [DE 26] on May 19, 2026, indicating that the Agency neither opposed nor supported that Plaintiff’s counsel should be awarded fees pursuant to 42 U.S.C. § 406(b). For the following reasons, the Motion [DE 25] is GRANTED. Background On January 31, 2022, plaintiff Dionne M. Milton filed an application for Social Security benefits, alleging a disability onset date of December 2, 2021. [DE 25-8 at 11]. After being denied benefits by the Social Security Administration, Plaintiff filed a complaint for review in this court under sentence four of 42 U.S.C. § 405 (g) on September 1, 2023. [DE 25].1 1 Plaintiff has two related social security appeals in the Northern District of Indiana: 1:23-CV-372 and 1:25-CV-125. Plaintiff’s counsel has worked 58.00 hours between the two cases. [DE 25]. On April 16, 2024, Plaintiff and his counsel filed a Stipulation to an Award of Attorney Fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412 [1:23-CV-371-TLS- JEM, DE 24] On April 22, 2024, the court granted the Stipulation of the Award and awarded the Plaintiff $8,000.00 in fees and expenses in full satisfaction of any and all claims pursuant to this matter under the EAJA [DE 25-6]. On May 15, 2024, the full $8,000.00 payment was applied to delinquent debt that Plaintiff owed for child support. [DE 25-7]. Upon remand from this court, an Administrative Law Judge again denied Plaintiff’s claim for benefits in November of 2024. [25-8 at 7]. On March 19, 2025, Plaintiff filed a complaint for review of this decision under sentence four of 42 U.S.C. § 405 (g). [DE 1]. The parties filed a Consent Motion for Attorney Fees pursuant to the EAJA § 2412 [DE 23] on September 24, 2025. [DE 24]. The court ordered that Plaintiff be awarded $7,250.00 in fees and expenses in full satisfaction of any and all claims pursuant to the EAJA [DE 24] the next day. On December 10, 2025, the full $7,250.00 payment was applied to delinquent debt that Plaintiff owed for child support. [DE 25-5]. Following this court’s remand under § 405(g), an Administrative Law Judge entered a fully favorable decision and approved Plaintiff’s claim for benefits. [25-8 at 1]. The Social Security Administration issued a notice of award dated May 10, 2026 and Plaintiff was awarded $49,407.90 for past due benefits. [25-9]. Plaintiff’s attorney, Jason Rodman, asks the court to authorize an award of attorney fees in the total amount of $12,351.97 pursuant to § 406(b). Discussion Awards under § 406(b) are paid out of a claimant’s past due benefits, a pool from which the Commissioner may withhold fees for both agency representation2 and representation in federal court.3 See Culbertson v. Berryhill, 586 U.S. 53, 60 (2019). The amount withheld by the Administration for payment cannot be more than 25% of past due benefits. Id. However, the fee awards are not calculated aggregately, so § 406(a) awards and §406(b) awards are each subject to a separate 25% caps not withstanding how much the fact that the agency withholds a single pool of past due benefits. Id. Unlike awards issued under the EAJA, awards under § 406(b) are not subject to offset to satisfy a federal debt and can be awarded even when a previous EAJA award has been intercepted to fulfill a plaintiff’s outstanding debt. See Vanbuskirk v. Colvin, 1:10-CV-00360- SLC, 2015 WL 3439228, at *4 (N.D. Ind. May 28, 2015) (granting the claimant’s attorney a § 406(b) award after the entirety of a previously granted EAJA award was offset against the claimant’s outstanding debt). Fee awards maybe be made under both § 406(b) and the EAJA, but the attorney being compensated must refund the amount of the smaller award or subtract it from the total fees awarded under § 406(b). Loar v. Saul, 3:18-CV-775-TLS, 2020 WL 3302990, at *1 (N.D. Ind. June 18, 2020) (ordering claimant’s attorney to refund claimant the amount of the EAJA award from the § 406(b) award). Attorney Rodman has acknowledged that he would be required to refund the previously awarded EAJA fee in the amount of zero dollars ($0.00) [DE 25 at 2]. 2 § 406(a) fee awards. 3 § 406(b) fee awards The court decides if a request for attorney’s fees pursuant to 42 U.S.C. § 406(b) is reasonable under the law. A court will consider factors such as the success of the claim, the character of the representation, and the time expended by counsel. Giesbrecht v. Barnhart, 535 U.S. 789, 808 (2002). Attorney Rodman contends that an award in the amount of $12,351.97 is reasonable for the total of 58 hours he spent representing Plaintiff in federal court [DE 25 at 4]. Attorney Rodman’s total requested fees amount to an hourly rate of $190.72 for attorney time. This is reasonable in this district, especially considering the contingent nature of representation regarding social security benefits cases. See Eitler v. Comm’r of Soc. Sec., 2026 WL 1091953, at *2 (N.D. Ind. Apr. 22, 2026) (awarding fees equating to an hourly rate of $372.14 for 29.2 hours of attorney time). See Bryant v. Comm'r of Soc. Sec., 2025 WL 2908145, at *2 (N.D. Ind. Oct. 10, 2025) (awarding fees equating to an hourly rate of $261.87 for 35.8 hours of work). Based on the foregoing reasons, the court GRANTS the Motion [DE 25] and AWARDS fees to Attorney Jason Rodman in the total amount of $12,351.97. The court ORDERS Attorney Rodman to refund the plaintiff, Dionne M. Milton, the total amount of the previously awarded EAJA fees, $0.00, upon receipt of the § 406(b) fees awarded by the court. ENTERED this 25th day of June, 2026. /s/ Andrew P. Rodovich United States Magistrate Judge