Wickman v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: January 10, 2024
• Docket: 3:19-cv-05921
• Status: Unknown

Opinion

6 UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 MARY A. WICKMAN, Case No. 3:19-CV-05921-RSM 10

11 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY FEES 12 v. PURSANT TO 42 U.S.C. § 406(b) 13 COMMISIONER OF SOCIAL SECURITY, 14 Defendant. 15

16 Presently before the Court is Plaintiff Mary A. Wickman’s Motion for Attorney Fees 17 under 42 U.S.C. § 406(b). Dkt. #27. Plaintiff seeks attorney’s fees in the amount of $5,469.33. 18 Id. at 1.1 This amount comes from 25% of Plaintiff’s retroactive benefits, $14,401.25, minus the 19 fee of $8,931.92 previously ordered under the Equal Access to Justice Act (EAJA). Dkt. #28 at 20 21 2. “The Commissioner takes no position on the request to award a netted 406(b) award.” Dkt. 22 #30 at 4. However, if Plaintiff’s netted fee request is granted, the Commissioner “requests that 23 the Order distinguish between the full amount determined as reasonable under 406(b) and the net 24 amount awarded for payment purpose.” Id. 25 26 27

28 1 Plaintiff’s fee request for $5,496.33 appears to have transposed two digits. Dkt. #30 at 2. The correct amount Plaintiff requests is $5,469.33. Attorney’s fees may be awarded to a successful social security claimant’s lawyer for his 1 2 or her representation before a court pursuant to 42 U.S.C. §§ 406(b). Straw v. Bowen, 866 F.2d 3 1167 (9th Cir.1989). Plaintiff must apply to the Social Security Administration for an award of 4 fees for representation at the administrative level. 42 U.S.C. § 406(a); Stenswick v. Bowen, 815 5 F.2d 519 (9th Cir.1987). Under 42 U.S.C. § 406(b), the Court may allow a reasonable fee for an 6 attorney who represented a Social Security Title II claimant before the Court and obtained a 7 8 favorable judgment, as long as such fee is not in excess of 25% of the total past-due benefits. See 9 Grisbrecht v. Barnhart, 535 U.S. 789 (2002). 10 Fee awards may be made under both the EAJA and § 406(b), but the claimant’s attorney 11 must refund to the claimant the amount of the smaller fee. See Gisbrecht v. Barnhart, 535 U.S. 12 13 789, 796 (2002). Plaintiff was awarded $57,605 in past due benefits. Dkt. #28-3 at 2. Twenty - 14 five percent of past due benefits is $14,401.25. Plaintiff’s retainer agreement with counsel agreed 15 to a twenty-five percent fee from total past-due benefits. Dkt. #28-2 at 1. The Court concludes 16 attorney fees amounting to $14,401.25 are reasonable within the meaning of § 406(b). Because 17 the awarded EAJA fees were lesser than $14,401.25, Plaintiff’s counsel will refund directly to 18 19 Plaintiff the $8,931.92 in EAJA fees that were previously awarded. See Gisbrecht at 796. 20 CONCLUSION 21 Accordingly, having reviewed Plaintiff’s Motion, the Commissioner’s Response, the 22 exhibits and declarations attached thereto, and the remainder of the record, the Court ORDERS 23 as follows: 24 25 1) Plaintiff’s Motion for Attorney Fees Pursuant to 42 U.S.C § 406(b) is GRANTED in 26 part. Plaintiff’s attorney, Jeanette Laffoon, is awarded reasonable fees in the sum of 27 28 $14,401.25. Upon receipt, Plaintiff’s counsel will refund directly to Plaintiff the 1 2 $8,931.92 in EAJA fees that were previously awarded; 3 2) This payment of fees comprises 25% of Plaintiff’s past-due benefits; 4 3) Any payment of fees is from the claimant’s withheld past-due benefits. If the 5 Commissioner has not withheld past-due benefits sufficient to satisfy this order and 6 Plaintiff’s attorney reports she is unable to collect the fee from the claimant, the 7 8 Commissioner will satisfy this order via the procedures in the Program Operation 9 Manual System (POMS) GN 03920.055.C. 10

11 IT IS SO ORDERED. 12 13 14 DATED this 10th day of January, 2024. 15 16 A 17 18 RICARDO S. MARTINEZ 19 UNITED STATES DISTRICT JUDGE

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