Russell v. Commissioner of Social Security

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE

PENNY L. RUSSELL, Case No. C23-5690-RSM Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY FEES v. UNDER 42 U.S.C. § 406(b) COMMISSIONER OF SOCIAL SECURITY, Defendant.

This matter comes before the Court on Plaintiff’s unopposed Motion for Attorney Fees 42 U.S.C. § 406(b). Dkt. #21. Plaintiff seeks fees in the net amount of $16,511.12 out of $98,418 in past due benefits. This accounts for a previous Equal Access to Justice Act (“EAJA”) fee award of $8,093.38. Id.; see also Dkt. #20. Defendant neither supports nor opposes counsel’s request and did not otherwise respond. See Dkt. #21 at 1.

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 22 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 1 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. 6 789, 796 (2002).

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

Accordingly, having reviewed Plaintiff’s Motion, the exhibits and declarations attached thereto, and the remainder of the record, the Court finds and ORDERS that Plaintiff’s Motion for Attorney Fees Under 42 U.S.C. § 406(b), Dkt. #21, is GRANTED. Plaintiff’s counsel is awarded $16,511.12 in attorney fees under 42 U.S.C. § 406(b), which is the gross § 406(b) fee of $24,604.50 less the previously awarded EAJA fee of $8,093.38. When issuing the Section 406(b) payment to Plaintiff’s attorney, the Commissioner is directed to send Plaintiff’s attorney, H. Peter Evans, the balance of $16,511.12 in accordance with agency policy.

DATED this 17th day of June, 2025.

A RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE