Fuller v. Astrue

Filing 31

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that pursuant to 42 U.S.C. § 406(b), plaintiff's attorney is awarded attorneys fees in the amount of $5075.00.IT IS FURTHER ORDERED that defendant shall pay the attorney's fees in the amo unt of $5075.00, paid directly to plaintiffs attorney, Frank T. Koch of Harlan, Harlan & Still. The payment shall be mailed to plaintiff's attorney, Frank T. Koch, Harlan, Harlan & Still, 515 Cherry Street, Suite 300, P.O. Box 933, Columbia, Missouri 65205. IT IS FINALLY ORDERED that plaintiff's attorney shall reimburse plaintiff for the $2695.74 previously awarded in EAJA fees. Signed by District Judge Stephen N. Limbaugh, Jr on 5/23/2016. (JMC)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
GENA G. FULLER,
Plaintiff,
v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No. 2:12CV56 SNLJ

MEMORANDUM AND ORDER
This matter is before the Court on plaintiff=s motion for attorney’s fees pursuant to
42 U.S.C. § 406(b). As a result of a favorable decision, plaintiff was found to be entitled
to retroactive benefits including attorney’s fees in the amount of $15,075.00, which have
been withheld from plaintiff’s retroactive benefits. Plaintiff’s attorney has been awarded
a fee in the amount of $10,000.00 and now seeks the remaining portion of the withheld
benefits for attorney’s fees in the sum of $5075.00. This Court previously awarded
plaintiff’s attorney $2695.74 in attorney’s fees under the Equal Access to Justice Act
(EAJA).
Defendant has no objection to the award of attorney’s fees under 42 U.S.C. §
406(b) in the amount of $5075.00, but requests that the Court order plaintiff’s attorney to
reimburse plaintiff for the $2695.74 previously awarded in EAJA fees. The Court agrees
with defendant. Plaintiff’s counsel may not profit twice for the same work, he must
refund to plaintiff the $2695.74 received pursuant to the EAJA. “Attorneys are entitled to

fees under the EAJA, which provides that a party prevailing against the United States in
court, including a successful Social Security benefits claimant, may be awarded fees
payable by the United States if the Government’s position in the litigation was not
substantially justified.” Chatman v. Astrue, 2:05CV11 TIA, 2009 WL 2382331, at *1
(E.D.Mo. July 30, 2009) (quoting Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002))
(internal quotation marks omitted). “An attorney may receive fees under both § 406(b)
and the EAJA, but must refund the smaller of the two fees to the plaintiff.” Id. Because
plaintiff was previously awarded $2695.74 in attorney’s fees under the EAJA, he must
refund that amount to plaintiff.
Accordingly,
IT IS HEREBY ORDERED that pursuant to 42 U.S.C. § 406(b), plaintiff’s
attorney is awarded attorney’s fees in the amount of $5075.00.
IT IS FURTHER ORDERED that defendant shall pay the attorney’s fees in the
amount of $5075.00, paid directly to plaintiff’s attorney, Frank T. Koch of Harlan, Harlan
& Still. The payment shall be mailed to plaintiff’s attorney, Frank T. Koch, Harlan,
Harlan & Still, 515 Cherry Street, Suite 300, P.O. Box 933, Columbia, Missouri 65205.
IT IS FINALLY ORDERED that plaintiff’s attorney shall reimburse plaintiff for
the $2695.74 previously awarded in EAJA fees.
Dated this 23rd day of May, 2016.

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STEPHEN N. LIMBAUGH, JR.
UNITED STATES DISTRICT JUDGE