Reed v. Commissioner of Social Security

Opinion

UNITED STATES DISTRICT COURT DISTRICT OF MASSACHUSETTS

_______________________________________ ) DENISE REED, ) ) Plaintiff, ) ) Civil Action No. v. ) 19-12369-FDS ) KILOLO KIJAKAZI, ) Acting Commissioner of Social Security, ) ) Defendant. ) _______________________________________)

MEMORANDUM AND ORDER ON PLAINTIFF’S MOTION FOR AWARD OF § 406(B) FEES SAYLOR, C.J. This is a motion for attorney’s fees under 42 U.S.C. § 406(b).1 Plaintiff’s counsel requests a contingent fee award of $8,310, which is 25 percent of the total past-due benefits of $33,242.71 awarded to plaintiff Denise Reed. For the reasons stated below, plaintiff’s motion is granted. I. Background On August 31, 2017, Denise Reed filed for supplemental security income (“SSI”) benefits, alleging that she became disabled on January 1, 2013. The Commissioner denied her claim both initially and upon reconsideration. Reed then requested a hearing. On September 21, 2018, she appeared before Administrative Law Judge Francis Hurley. The ALJ issued his decision on January 3, 2019, concluding that she was not disabled.

1 The Acting Commissioner of the Social Security Administration, Kilolo Kijakazi, has been substituted as the named defendant pursuant to Fed. R. Civ. P. 25(d). Reed requested a review of that decision by the Appeals Council. On October 2, 2019, the Appeals Council declined to review the decision, making the ALJ’s decision the final decision of the Commissioner in this case. On May 5, 2020, plaintiff filed a motion with this Court to reverse the decision of the Commissioner. That motion was granted, and this Court entered an order of remand to the

Social Security Administration on August 21, 2020. On remand, the ALJ granted plaintiff’s application for SSI benefits and the Social Security Administration determined that plaintiff was entitled to retroactive benefits of $33,242.71. On September 3, 2021, plaintiff filed a motion for attorney’s fees under 42 U.S.C. § 406(b). Previously, this Court had granted plaintiff’s November 19, 2020 motion for attorney’s fees under the Equal Access to Justice Act (EAJA) and awarded plaintiff’s counsel $4,283.35. II. Analysis Section 406(b) allows a court to award reasonable attorney’s fees up to 25 percent of total past-due benefits to which a claimant is entitled. See 42 U.S.C. § 406(b). However, an award

for attorney’s fees under the EAJA “offsets” an award under § 406(b). Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). Therefore, when a court awards attorney’s fees under both EAJA and § 406(b), the claimant’s attorney must “refun[d] to the claimant the amount of the smaller fee.” Id. Here, the Social Security Administration determined that plaintiff is entitled to $33,242.71 in past-due-benefits. Accordingly, the Court will award plaintiff’s counsel 25 percent of that—$8,310.67—under § 406(b). In addition, plaintiff’s counsel is ordered to refund plaintiff $4,283.35, the amount of the award for attorney’s fees she received under the EAJA. Gisbrecht, 535 U.S. at 796. III. Conclusion For the foregoing reasons, plaintiff’s motion is GRANTED.

So Ordered.

/s/ F. Dennis Saylor IV F. Dennis Saylor IV Dated: April 14, 2022 Chief Judge, United States District Court