Mothe v. Commissioner of Social Security

UNITED STATES DISTRICT COURT 7 WESTERN DISTRICT OF WASHINGTON AT SEATTLE TONI MARIE MOTHE, ) ) CASE NO. C20-5856-RSM 10 Plaintiff, ) ) ORDER GRANTING PLAINTIFF’S 11 vs. ) MOTION FOR ATTORNEY’S FEES ) UNDER 42 U.S.C. § 406(b) COMMISSIONER OF SOCIAL SECURITY, ) ) 13 Defendant. ) ) Presently before the Court is Plaintiff Toni Marie Mothe’s Motion for Attorney’s Fees under 42 U.S.C. § 406(b). Dkt #23. Plaintiff seeks attorney’s fees in the amount of $2,917.52. Id. On September 13, 2022, Defendant Commissioner of Social Security filed a response noting the Commissioner was “unable to state a position on the merits of Plaintiff’s request” due to Plaintiff’s failure to attach exhibits referenced in her Motion. Dkt. #24 at 1. On September 28, 2022, Plaintiff filed a reply admitting her Motion’s deficiencies and finally attaching the aforementioned exhibits. Dkt. #25. On October 5, 2022, the Court directed the Commissioner to file a sur-response by October 12, 202, and allowed Plaintiff to file a sur-reply if any by October 17, 2022. Dkt. #26.

1 On October 6, 2022, Commissioner filed a sur-response stating it does not object to the total amount sought by Plaintiff. Dkt. #27. As a result, the Court finds a sur-reply from Plaintiff unnecessary.

4 Attorney’s fees may be awarded to a successful social security claimant’s lawyer for his or her representation before a court pursuant to 42 U.S.C. §§ 406(b). Straw v. Bowen, 866 F.2d 1167 6 (9th Cir. 1989). Plaintiff must apply to the Social Security Administration for an award of fees for representation at the administrative level. 42 U.S.C. § 406(a); Stenswick v. Bowen, 815 F.2d 519 8 (9th Cir. 1987). Under 42 U.S.C. § 406(b), the Court may allow a reasonable fee for 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 Grisbrecht v. Barnhart, 535 U.S. 789 (2002). Plaintiff was awarded $59,254.10 in past due benefits. Dkt.

12 #25 at 15. Twenty-five percent of past due benefits is $14,813.52. The Court concludes that the attorney’s fees sought by counsel are reasonable within the meaning of § 406(b). Plaintiff’s counsel is entitled to a gross attorney fee of $2,917.52. Because the Court denied Plaintiff’s motion for EAJA fees as untimely (Dkt. #23), counsel is entitled to a net award of $2,917.52.

16 CONCLUSION 17 Accordingly, having reviewed Plaintiff’s Motion, the Commissioner’s Response, Plaintiff’s Reply, the exhibits and declarations attached thereto, the Commissioner’s Sur- Response, and the remainder of the record, the Court ORDERS as follows: 20 1) Plaintiff's Motion for an Award of Attorney’s Fees (Dkt. #23) is GRANTED. Plaintiff’s 21 counsel is awarded 42 U.S.C. § 406(b) gross attorney fees in the sum of $2,917.52. The 22 Commissioner is directed to send to Plaintiff’s counsel an award of $2,917.52, minus any 23 applicable processing fees as allowed by statute; 24 2) This payment of fees comprises 4.92% of Plaintiff’s past-due benefits; 3) Any payment of fees is from claimant’s withheld past due benefits. If the Commissioner 2 has not withheld past-due benefits sufficient to satisfy this order and Plaintiff’s attorney 3 reports he is unable to collect the fee from the claimant, the Commissioner will satisfy this 4 Order via the procedures in the Program Operation Manual System (POMS) GN 5 03920.055.C.

7 IT IS SO ORDERED.

8 DATED this 13th day of October, 2022.

10 A RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE