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.
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)").
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.