FOR THE WESTERN DISTRICT OF WISCONSIN

ZACHARY WUNROW,

Plaintiff, ORDER

v. 21-cvB1-wmc

KILOLO KIJAKAZI, Acting Commissioner of Social Security,

Defendant.

On August 13, 2021, 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. Now before the court is plaintiff Zachary Wunrow’s attorney’s petition for fees pursuant to § 406(b)(1) in the amount of $7,373.77. (Dkt. #22.) While defendant does not object to this amount, it does object to the extent that this obscures the total amount of 406(b) fees requested, which is $12,749.25. (Dkt. #24.)

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 $7.373.77, which represents the difference between the prior EAJA fee award of $5,375.48 and $12,749.25, which is 25 percent of what was awarded to plaintiff in past-due benefits. objection from plaintiff or defendant, the court will grant the motion. The fees requested

by counsel are reasonable in light of the time he and members of his firm 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: 1. Counsel’s motion for attorney fees under

(b)(1) in the total amount of $12,749.25 is GRANTED.

2. Plaintiff’s counsel’s firm is authorized to retain the $5,375.48 received under the EAJA and the processing center shall pay the balance of the fee authorized by this order ($7,373.77) out of the withheld past-due benefits. Entered this 12th day of April, 2022.

BY THE COURT:

/s/ __________________________________ WILLIAM M. CONLEY District Judge