IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN

SCOTT WANG,

Plaintiff, ORDER v. 17-cv-356-wmc ANDREW M. SAUL, Commissioner of Social Security,

Defendant.

Plaintiff’s counsel seeks an award of attorney’s fees in the amount of $18,990 pursuant to

(b). (Dkt. #16.)1 As set forth in plaintiff’s motion and attached materials, plaintiff Scott Wang was awarded $129,923.52 in past due benefits after remand from this court. Section 406(b) contemplates a fee award not to exceed 25% of the past due benefits, which here works out to a maximum award of $32,480.88. The administrative law judge had already approved $10,000 in fees to reflect plaintiff’s counsel’s time spent representing plaintiff in the administrative process. Plaintiff’s counsel recognizes that if he were to seek the full 25% allowed under the fee agreement and the maximum amount permitted under § 5046(b) then the hourly rate would be $1,065.44. Accordingly, plaintiff’s counsel has reduced his request to reflect an hourly rate of $900. The Commissioner filed a response to the § 406(b) fee request, pointing out the possibility of a “windfall recovery” by counsel because the requested fee amount implies a

1 To be clear, plaintiff seeks an award of $13,390, which accounts for the EAJA fee previously awarded of $5,600. The court, however, will consider the reasonableness of the total request under § 406(b), recognizing that 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,

(2002) (explaining that “an EAJA award offsets an award under Section 406(b)”). relatively high hourly rate. (Def.’s Resp. (dkt. #16).) See generally Heise v. Colvin, No. 14- CV-739-JDP,

, at *2 (W.D. Wis. Dec. 15, 2016) (addressing proper calculation of hourly rate under § 406(b)).

While the court agrees that an hourly rate of $900 is certainly on the high end of the awards approved by this court, the court generally finds that awards reflecting an hourly rate of less than $1000 are reasonable under § 406(b). Accordingly, plaintiff’s motion for fees under § 406(b) (dkt. #16) is GRANTED. The court will award $18,990 under

(b). As explained above, plaintiff’s counsel will be required to refund the

amount awarded under the EAJA to plaintiff. Entered this 10th day of October, 2019. BY THE COURT:

/s/ __________________________________ WILLIAM M. CONLEY District Judge