Opinion
19-cvB448-wmc
09-08-2023
JAMES WEBER, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
ORDER
WILLIAM M. CONLEY, DISTRICT JUDGE
On January 12, 2021, the court issued an order remanding this case to the commissioner for further proceedings under sentence four of 42 U.S.C. § 405(g) pursuant to stipulation of the parties. Now before the court is plaintiff James Weber's attorney's petition for supplemental fees pursuant to § 406(b)(1) in the amount of $4,126.54. (Dkt. #25.) Defendant does not object to this motion. (Dkt. #28)
Fees under 42 U.S.C. § 406
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. § 406(b)(1)(A). The fee is payable “out of, and not in addition to, the amount of [the] past-due benefits.” Id. Counsel asks the court to approve an attorney fee award in the total amount of $11,126.54, which represents 25 percent of the auxiliary benefits that was awarded to plaintiff. Having considered the supporting materials filed by plaintiff's attorney, and hearing no objection from plaintiff or defendant, the court will grant the motion. The fees requested by counsel are reasonable in light of the time she and members of her firm spent on this case and the favorable result he obtained for plaintiff while working on a contingency basis.
The court notes that counsel was previously awarded fees under 42 U.S.C. § 406(b)(1) in the amount of $7,000.00. (Dkt. #24.)
Of course, counsel is not allowed to recover both awards. Section 406(b) has been harmonized with the EAJA; though fee awards may be made under both the EAJA and § 406(b), a claimant's attorney must refund to the claimant the amount of the smaller fee. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (explaining that “an EAJA award offsets an award under Section 406(b)”).
ORDER
IT IS ORDERED that:
1. Counsel's motion for supplemental attorney fees under 42 U.S.C. § 406(b)(1) (dkt. #25) is GRANTED.
2. The court approves representative fees under § 406(b) in the gross amount of $11,126.54.
3. Counsel may retain the $7,000.00 previously awarded in partial satisfaction of the § 406(b) award.
4. The net amount of $4,126.54 shall be disbursed by the Commissioner from any of plaintiff's past-due benefits still being withheld and in accordance with agency policy.