FOR THE WESTERN DISTRICT OF WISCONSIN

ELLEN KENNEDY,

Plaintiff, ORDER

v. 18-cvB421-wmc

ANDREW SAUL, Commissioner of Social Security,

Defendant.

On November 21, 2019, the court issued an order and judgment remanding this case to the commissioner for further proceedings under sentence four of 42 U.S.C. ' 405(g) pursuant to stipulation of the parties. Judgment was also entered on November 21, 2019. Now before the court is plaintiff Ellen Kennedy’s attorney’s petition for fees pursuant to § 406(b)(1) in the amount of $5,197.25. (Dkt. #23.) Defendant does not object to this motion. (Dkt. #25.) Fees under 42 U.S.C. ' 406 As part of its judgment, a court may allow “a reasonable fee . . . not in excess of 25 percent of the . . . past-due benefits” awarded to the claimant. § 406(b)(1)(A). The fee is payable “out of, and not in addition to, the amount of [the] past-due benefits.” Id. Counsel asks the court to approve an attorney fee award in the amount of $5,197.25, which represents the difference between the prior EAJA fee award and 25 percent of the amount awarded to plaintiff in past-due benefits.1 Having considered the supporting

1 The court notes that the 25 percent amount withheld from plaintiff’s award was $14,597.25; however, counsel was previously awarded EAJA fees in the amount of the court will grant the motion. The fees requested by counsel are reasonable in light of

the time he spent on this case and the favorable result he obtained for plaintiff while working on a contingency basis. Of course, counsel is not allowed to recover both awards. 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)”).

ORDER IT IS ORDERED that counsel’s motion for reasonable attorney fees under

(b)(1) in the amount of $5,197.25 (dkt. #23) is GRANTED. Entered this 10th day of March, 2021.

BY THE COURT:

/s/ __________________________________ WILLIAM M. CONLEY District Judge

$9,400.00 (dkt. #21).