David Malone v. Commissioner of Social Security

[6] 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT TACOMA [9] DAVID MALONE, Case No. 3:23-cv-5462-RSM [10] Plaintiff, ORDER GRANTING PLAINTIFF’S 11 MOTION FOR ATTORNEY FEES v. PURSUANT TO 42 U.S.C. § 406 (b) [12] COMMISSIONER OF SOCIAL SECURITY, 13 Defendant. [14] 15 This matter comes before the Court on Plaintiff’s Motion for Attorney Fees under 42 16 U.S.C. § 406 (b). Dkt. #21. Plaintiff seeks fees in the net amount of $20,859.45 out of $133,349 17 in past due benefits. See Dkt. #22. This accounts for a previous Equal Access to Justice Act 18 (“EAJA”) fee award $3,277.80. Id. Defendant did not respond to this Motion. See gen. Dkt. 19 Attorney’s fees may be awarded to a successful social security claimant’s counsel 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 fees for representation at the administrative level. 42 U.S.C. § 406 (a); Stenswick v. Bowen, 815 23 F.2d 519 (9th Cir. 1987). Under 42 U.S.C. § 406 (b), the Court may allow a reasonable fee for [24] 1 an attorney who represented a Social Security Title II claimant before the Court and obtained a favorable judgment, as long as such fee is not in excess of 25% of the total past-due benefits. See [2] Grisbrecht v. Barnhart, 535 U.S. 789 (2002). [3] Fee awards may be made under both the EAJA and § 406(b), but the claimant’s attorney [4] must refund to the claimant the amount of the smaller fee. See Gisbrecht v. Barnhart, 535 U.S. 5 789, 796 (2002). [6] The Court concludes that the request is reasonable within the meaning of § 406(b). [7] Accordingly, having reviewed Plaintiff’s Motion, the exhibits and declarations attached thereto, [8] and the remainder of the record, the Court ORDERS as follows: Plaintiff’s Motion for Attorney [9] Fees Pursuant to 42 U.S.C. § 406 (b), Dkt. #21, is GRANTED. Plaintiff’s counsel is awarded [10] $20,859.45 in attorney fees under 42 U.S.C. § 406 (b). When issuing the § 406(b) check for [11] payment to Plaintiff’s attorney, the Commissioner is directed to send to Plaintiff’s attorney, [12] David P. Oliver at 4608 South 47th Street, Suite C, Tacoma, WA 98409, or via automatic deposit, [13] the net balance of $20,859.45, less any applicable processing fee prescribed by law. Plaintiff’s [14] Motion to Withdraw, Dkt. #20, is GRANTED. The Court STRIKES Plaintiff’s original motion [15] requesting attorney fees under 42 U.S.C. § 406 (b), Dkt. #18, as moot. [17] DATED this 15th day of January, 2026. [18] A [20] RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE