THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA ASHEVILLE DIVISION CIVIL CASE NO. 1:19-cv-00030-MR

KAREN BUCHANAN, ) ) Plaintiff, ) ) vs. ) O R D E R ) KILOLO KIJAKAZI, Acting ) Commissioner of Social Security, ) ) Defendant. ) _______________________________ )

THIS MATTER is before the Court on the Plaintiff’s Motion for Attorney Fees under § 406(b) of the Social Security Act [Doc. 15]. I. PROCEDURAL BACKGROUND On January 28, 2019, 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 October 8, 2019, 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. 13, 14]. Plaintiff’s counsel did not seek an award of attorney’s fees under the Equal Access to Justice Act,

(d) (EAJA). On March 29, 2021, the Commissioner issued a Notice of Award to the Plaintiff explaining her past due benefits and stating that $25,145.00,

representing 25% of the Plaintiff’s back benefits, was being withheld from the Plaintiff’s award to pay any award of attorney’s fees. [Doc. 16 at 1]. The Plaintiff and her attorney had a contingency fee agreement pursuant to which

any attorney’s fee award could not exceed 25% of the past due benefits. [Doc. 16-1]. The Plaintiff’s counsel now seeks an award of $13,145.001 in fees pursuant to

(b)(1). [Doc. 15].

II. DISCUSSION There are two avenues by which a Social Security benefits claimant may be awarded attorney’s fees. First, claimants 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....”

Although Plaintiff’s counsel did not petition for either EAJA fees or administrative fees, she asks the Court to consider this Motion as if she had received them. With the subtraction of theoretical awards for EAJA fees and administrative fees, the Plaintiff requests only $13,145.00 of the $25,145.00 that was withheld. [Doc. 15 at 1].

2 2412(d)(1)(A). Second, a claimant may seek an award pursuant to

(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....”

(b)(1)(A). While 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,

(4th Cir. 2009) (quoting Gisbrecht v. Barnhart,

(2002)). Here, the Plaintiff and her 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, Ҥ 406(b) was designed to control, not to displace, fee agreements between Social Security

3 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,

(4 Cir. 2005) (citation and internal quotation marks omitted). The Court finds that the services rendered in this Court were appropriate and reasonable to the relief sought, and the contingency fee agreement executed by the Plaintiff and her counsel is reasonable. Accordingly, the Plaintiff's Motion for Attorney's Fees is granted. IT IS, THEREFORE, ORDERED that the Plaintiffs Motion [Doc. 15] is hereby GRANTED, and an award of attorney's fees in the amount of Thirteen Thousand One Hundred and Forty-Five Dollars ($13,145.00) pursuant to

(b)(1)(A) is hereby approved. IT 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 benefits which have been withheld for such purpose. Signed: October 25, 2021 IT IS SO ORDERED. Ct ey Chief United States District Judge AS