Osborne v. Commissioner of Social Security

UNITED STATES DISTRICT COURT 2 WESTERN DISTRICT OF WASHINGTON AT SEATTLE MARY E. OSBORNE, Case No. 2:21-cv-387-RSM Plaintiff, ORDER GRANTING PLAINTIFF’S 6 MOTION FOR ATTORNEY FEES v. PURSANT TO 42 U.S.C. § 406(b) COMMISIONER OF SOCIAL SECURITY, 9 Defendant.

This matter comes before the Court on Plaintiff Mary Osborne’s Motion for Attorney Fees under 42 U.S.C. § 406(b). Dkt. #23. Plaintiff seeks fees in the amount of $18,882.25. Upon receipt of this sum, counsel for Plaintiff will refund the previously awarded Equal Access to Justice Act (“EAJA”) fees of $4,705.45 directly to the Plaintiff. Id. Defendant neither supports nor opposes counsel’s request. Dkt. #24. However, “the Commissioner requests that the Court specifically indicate that any amount it authorizes in § 406(b) fees is to be paid out of Plaintiff’s 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 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 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 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).

Fee awards may be made under both the EAJA and § 406(b), but the claimant’s attorney must refund to the claimant the amount of the smaller fee. See Gisbrecht v. Barnhart, 535 U.S. 3 789, 796 (2002).

The Court concludes the request is reasonable within the meaning of § 406(b).

Accordingly, having reviewed Plaintiff’s Motion, the Commissioner’s Response, the exhibits and declarations attached thereto, and the remainder of the record, the Court ORDERS as follows: 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 benefits awarded to the Plaintiff, are to be remitted to the Law Offices of Charles E.

Binder and Harry J. Binder, LLP. Upon receipt of this sum, counsel for Plaintiff is 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 Commissioner has not withheld past-due benefits sufficient to satisfy this order and Plaintiff’s attorney reports being unable to collect the fee from the Plaintiff, the 19 Commissioner will satisfy this order via the procedures in the Program Operation 20 Manual System (POMS) GN 03920.055.C.

DATED this 17th day of September, 2024.

A RICARDO S. MARTINEZ 25 UNITED STATES DISTRICT JUDGE