United States District Court, W.D. North Carolina, Asheville Division
Reidinger United States District Judge.
MATTER is before the Court on the Plaintiff's
Motion for Attorney Fees under §406(b) of the Social
Security Act [Doc. 19].
March 14, 2016, the Plaintiff initiated this action seeking
judicial review of the Commissioner's decision to deny
her application for benefits under the Social Security Act.
[Doc. 1]. On March 8, 2017, this Court reversed the
Commissioner's decision denying the Plaintiff's
application for benefits and remanded the case to the Appeals
Council for further administrative action. [Docs. 15, 16]. On
April 21, 2017, the Court awarded the Plaintiff
attorney's fees in the amount of $4, 480.00 in full
satisfaction of any and all claims by the Plaintiff pursuant
to the Equal Access to Justice Act, 28 U.S.C. § 2412(d)
(EAJA). [Doc. 18].
March 4, 2018, the Commissioner issued a Notice of Award
awarding past due benefits to the Plaintiff. [Doc. 19-1]. The
Notice of Award also explains that $17, 465.00, representing
25% of the Plaintiff's back benefits, was being withheld
from the Plaintiff's back benefits to pay any award of
attorney's fees. [Id. at 4]. The Plaintiff and
his attorney had a contingency fee agreement pursuant to
which any attorney's fee award could not exceed 25% of
the past due benefits. [Doc. 19-2].
Plaintiff's counsel now seeks an award of $9, 500.00 in
fees pursuant to 42 U.S.C. § 406(b)(1), with the
additional stipulation that upon receipt of such payment, she
will refund to the Plaintiff the $4, 480.00 previously
awarded under the EAJA. [Doc. 19]. The Defendant does not
oppose the Plaintiff's fee request. [Id.].
are two avenues by which a Social Security benefits claimant
may be awarded attorney's fees. First, a claimant may
seek a fee award under the EAJA, which provides that “a
court shall award to a prevailing party other than the United
States fees and other expenses . . . incurred by that party
in any civil action (other than cases sounding in tort),
including proceedings for judicial review of agency action,
brought by or against the United States in any court having
jurisdiction of that action....” 28 U.S.C. §
2412(d)(1)(A). Second, a claimant may seek an award pursuant
to 42 U.S.C. § 406(b), which provides that
“[w]henever a court renders a judgment favorable to a
claimant ... who was represented before the court by an
attorney, the court may determine and allow as part of its
judgment a reasonable fee for such representation, not in
excess of 25 percent of the total of the past-due benefits to
which the claimant is entitled by reason of such
judgment....” 42 U.S.C. § 406(b)(1)(A).
attorney's fees may be awarded under both the EAJA and
§ 406(b), the Social Security Act requires that the
attorney must refund to the claimant the smaller fee.
“Thus, an EAJA award offsets an award under Section
406(b), so that the amount of the total past-due benefits the
claimant actually receives will be increased by the EAJA
award up to the point the claimant receives 100 percent of
the past-due benefits.” Stephens ex rel. R.E. v.
Astrue, 565 F.3d 131, 134-35 (4th Cir. 2009)
(quoting Gisbrecht v. Barnhart, 535 U.S. 789, 796
the Plaintiff and his counsel entered into a contingency fee
agreement by which the Plaintiff agreed to pay 25% of any
past due benefits awarded to his counsel. As the Fourth
Circuit has recognized, “§ 406(b) was designed to
control, not to displace, fee agreements between Social
Security benefits claimants and their counsel. As long as the
agreement does not call for a fee above the statutory ceiling
of twenty-five percent of awarded past-due benefits, . . .
§ 406(b) simply instructs a court to review the
agreement for reasonableness.” Mudd v.
Barnhart, 418 F.3d 424, 428 (4th Cir. 2005)
(citation and internal quotation marks omitted).
Court finds that the services rendered in this Court were
appropriate and reasonable to the relief sought, and that the
contingency fee agreement executed by the Plaintiff and his
counsel is reasonable. Accordingly, the Plaintiff's
Motion for Attorney Fees is granted.
IS, THEREFORE, ORDERED that the Plaintiff's
Motion for Attorney Fees [Doc. 19] is hereby
GRANTED, and an award of attorney's fees
in the amount of Nine Thousand Five Hundred Dollars ($9,
500.00) pursuant to 42 U.S.C. § 406(b)(1)(A) is hereby
IS FURTHER ORDERED that upon receipt of the §
406(b) fees, Plaintiff's counsel is hereby instructed to
return to the Plaintiff the sum of $4, 480.00, representing
the fee that counsel previously received pursuant to the
Equal Access to Justice Act, 28 U.S.C. § 2412(d).
IS FURTHER ORDERED that a copy of this Order be
provided to the Social Security Administration in order to
effectuate payment of the award from past due ...