Osborne v. Commissioner of Social Security

[1] UNITED STATES DISTRICT COURT 2 WESTERN DISTRICT OF WASHINGTON AT SEATTLE [4] MARY E. OSBORNE, Case No. 2:21-cv-387-RSM [5] Plaintiff, ORDER GRANTING PLAINTIFF’S 6 MOTION FOR ATTORNEY FEES v. PURSANT TO 42 U.S.C. § 406 (b) [7] 8 COMMISIONER OF SOCIAL SECURITY, 9 Defendant. [10] This matter comes before the Court on Plaintiff Mary Osborne’s Motion for Attorney [11] 12 Fees under 42 U.S.C. § 406 (b). Dkt. #23. Plaintiff seeks fees in the amount of $18,882.25. Upon 13 receipt of this sum, counsel for Plaintiff will refund the previously awarded Equal Access to [14] Justice Act (“EAJA”) fees of $4,705.45 directly to the Plaintiff. Id. Defendant neither supports [15] nor opposes counsel’s request. Dkt. #24. However, “the Commissioner requests that the Court [16] specifically indicate that any amount it authorizes in § 406(b) fees is to be paid out of Plaintiff’s [17] 18 past-due benefits in accordance with agency policy.” Id. at 2. 19 Attorney’s fees may be awarded to a successful social security claimant’s lawyer for his [20] or her representation before a court pursuant to 42 U.S.C. §§ 406 (b). Straw v. Bowen, 866 F.2d 21 1167 (9th Cir.1989). Plaintiff must apply to the Social Security Administration for an award of [22] 23 fees for representation at the administrative level. 42 U.S.C. § 406 (a); Stenswick v. Bowen, 815 24 F.2d 519 (9th Cir.1987). Under 42 U.S.C. § 406 (b), the Court may allow a reasonable fee for an [25] attorney who represented a Social Security Title II claimant before the Court and obtained a [26] favorable judgment, as long as such fee is not in excess of 25% of the total past-due benefits. See [27] Grisbrecht v. Barnhart, 535 U.S. 789 (2002). [28] Fee awards may be made under both the EAJA and § 406(b), but the claimant’s attorney [1] 2 must refund to the claimant the amount of the smaller fee. See Gisbrecht v. Barnhart, 535 U.S. 3 789, 796 (2002). [4] The Court concludes the request is reasonable within the meaning of § 406(b). [5] Accordingly, having reviewed Plaintiff’s Motion, the Commissioner’s Response, the exhibits [6] and declarations attached thereto, and the remainder of the record, the Court ORDERS as follows: [7] 8 1) Plaintiff’s Motion for Attorney Fees Pursuant to 42 U.S.C § 406(b), Dkt. #23, is 9 GRANTED. $18,882.25, which represents twenty-five percent (25%) of the past due [10] benefits awarded to the Plaintiff, are to be remitted to the Law Offices of Charles E. [11] Binder and Harry J. Binder, LLP. Upon receipt of this sum, counsel for Plaintiff is [12] 13 directed to refund the previously awarded Equal Access to Justice Act fees of 14 $4,705.45 directly to the Plaintiff. 15 2) Any payment of fees is from the Plaintiff’s withheld past-due benefits. If the [16] Commissioner has not withheld past-due benefits sufficient to satisfy this order and [17] Plaintiff’s attorney reports being unable to collect the fee from the Plaintiff, the [18] 19 Commissioner will satisfy this order via the procedures in the Program Operation 20 Manual System (POMS) GN 03920.055.C. [21] DATED this 17th day of September, 2024. [23] A [24] RICARDO S. MARTINEZ 25 UNITED STATES DISTRICT JUDGE