Prause, Yvonne v. Berryhill, Nancy ( 2021 )

FOR THE WESTERN DISTRICT OF WISCONSIN YVONNNE PRAUSE, Plaintiff, ORDER v. 1 8 - c v B 7 8 0 -w m c ANDREW SAUL, Commissioner of Social Security, Defendant. On February 12, 2020, the court issued an order and judgment remanding this case to the commissioner for further proceedings under sentence four of 42 U.S.C. ' 405(g) pursuant to stipulation of the parties. Now before the court is plaintiff Yvonne Prause’s attorney’s petition for fees pursuant to § 406(b)(1) in the amount of $21,620.00 (dkt. #24), to which defendant has not objected (dkt. #28). Fees under 42 U.S.C. ' 406 As part of its judgment, a court may allow “a reasonable fee . . . not in excess of 25 percent of the . . . past-due benefits” awarded to the claimant. § 406(b)(1)(A). The fee is payable “out of, and not in addition to, the amount of [the] past-due benefits.” Id. Counsel asks the court to approve an attorney fee award in the amount of $21,620.00, which represents $44,020.00 withheld from the amount awarded to plaintiff in past-due benefits, less $15,000 administrative fees approved for Attorney Timothy Sempf, who represented plaintiff at the administrative level and $7,400.00 in EAJA fees. (Dkt. #23.) Having considered the supporting materials filed by plaintiff's attorney, and hearing no by counsel are reasonable in light of the time he spent on this case and the favorable result he obtained for plaintiff while working on a contingency basis. Of course, counsel is not allowed to recover both awards. Section 406(b) has been harmonized with the EAJA; though fee awards may be made under both the EAJA and § 406(b), a claimant's attorney must refund to the claimant the amount of the smaller fee. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (explaining that “an EAJA award offsets an award under Section 406(b)”). ORDER IT IS ORDERED that counsel’s motion for reasonable attorney fees under 42 U.S.C. § 406(b)(1) in the amount of $21,620.00 (dkt. #24) is GRANTED. Entered this 9th day of March, 2021. BY THE COURT: /s/ __________________________________ WILLIAM M. CONLEY District Judge