Opinion
20-cvB535-wmc
03-11-2022
ROBERT ANDERSON, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
ORDER
WILLIAM M. CONLEY, District Judge.
On January 5, 2021, the court issued an order and judgment remanding this case to the commissioner for further proceedings under sentence four of 42 U.S.C. § 405g pursuant to stipulation of the parties. Now before the court is plaintiff Cameron Kaiser's attorney's petition for fees pursuant to § 406b1 in the amount of $4,323.40. Dkt. #23. Defendant does not object to this motion. Dkt. #25.
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. § 406b1A. 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 amount of $4,323.40, which represents the difference between the prior EAJA fee award and 25 percent of $37,293.60 that was awarded to plaintiff in past-due benefits. 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 he and members of his firm spent on this case and the favorable result he obtained for plaintiff while working on a contingency basis.
Of course, counsel is not allowed to recover both awards. Section 406b has been harmonized with the EAJA; though fee awards may be made under both the EAJA and § 406b, a claimant's attorney must refund to the claimant the amount of the smaller fee. Gisbrecht v. Barnhart, 535 U.S. 789, 7962002 explaining that “an EAJA award offsets an award under Section 406b”.
The court notes that counsel was previously awarded EAJA fees in the amount of $5,000.00. (Dkt. #22.)
ORDER
IT IS ORDERED that counsel's motion for attorney fees under 42 U.S.C. § 406(b)(1) in the amount of $4,323.40 (dkt. #23) is GRANTED.