MARZINI v. COLVIN

No. 14-cv-787-wmc.

CATHERINE MARZINI, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

United States District Court, W.D. Wisconsin.

Editors Note
Applicable Law: 42 U.S.C. § 405
Cause: 42 U.S.C. § 405 Review of HHS Decision (SSID)
Nature of Suit: 864 Social Security: SSID Tit. XVI
Source: PACER


Attorney(s) appearing for the Case

Catherine Marzini, Plaintiff, represented by Dana W. Duncan , Duncan Disability Law, SC.

Carolyn W. Colvin, Defendant, represented by Richard Davis Humphrey , U.S. Attorney's Office & Michael Jason Scoggins , SSA Office of the General Counsel.


ORDER

WILLIAM M. CONLEY, District Judge.

On February 19, 2015, the court issued an order and judgment 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 Dave Stinson's attorney's petition for fees pursuant to § 406(b)(1) in the amount of $1,216.00. (Dkt. #23.) Defendant does not object to this motion. (Dkt. #26.)

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 amount of $1,216.00, which represents the difference between the prior EAJA fee award and 25 percent of $34,864.00 that was awarded to plaintiff in past-due benefits.1 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 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 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 counsel's motion for attorney fees under 42 U.S.C. § 406(b)(1) in the amount of $1,216.00 (dkt. #23) is GRANTED.

FootNotes


1. The court notes that 25 percent of $34,864.00 is $8,716.00; however, counsel was previously awarded $7,500.00. (Dkt. #21.)

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