Mitchell v. Astrue

Filing 49

MEMORANDUM AND ORDER granting 46 Motion for Attorney Fees - IT IS ORDERED: The Plaintiff's supplemental motion for attorney fees under 42 U.S.C. § 406(b) (Filing No. 46 ) is granted; and the fee approved in Filing No. 45 is increased by $1,443. Ordered by Judge Laurie Smith Camp. (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
GLEN O. MITCHELL,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
vs.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.

CASE NO. 4:08CV3230

MEMORANDUM
AND ORDER

This matter is before the Court on the Plaintiff’s supplemental motion for attorney
fees under 42 U.S.C. § 406(b) (Filing No. 46). The motion is supported by evidence (Filing
No. 47) and is unopposed (Filing No. 48).
DISCUSSION
The Court previously awarded attorney fees under 42 U.S.C. § 406(b). The ALJ
then ruled that the Plaintiff was underpaid by $5,772.
42 U.S.C. § 406(b) provides:
Whenever a court renders a judgment favorable to a claimant under
this subchapter who was represented before the court by an attorney, the
court may determine and allow as part of its judgment a reasonable fee for
such representation, not in excess of 25 percent of the total of the past-due
benefits to which the claimant is entitled by reason of such judgment, and the
Commissioner of Social Security may, notwithstanding the provisions of
section 405(i) of this title, but subject to subsection (d) of this section, certify
the amount of such fee for payment to such attorney out of, and not in
addition to, the amount of such past-due benefits. In case of any such
judgment, no other fee may be payable or certified for payment for such
representation except as provided in this paragraph.
42 U.S.C. § 406(b)(1)(A) (emphasis added).
EAJA fees are paid by the Social Security Administration, while fees awarded under
§ 406(b) are paid from the Claimant’s past-due benefits. Id.; Bear v. Astrue, 544 F. Supp.

2d 881, 883 (D. Neb. 2008). For the reasons stated in the Court’s previous order awarding
attorney fees (Filing No. 45), the requested supplemental award of $1,443, which
represents 25% of the underpayment of $5,772, is approved.
Therefore,
IT IS ORDERED:
1.

The Plaintiff’s supplemental motion for attorney fees under 42 U.S.C. §
406(b) (Filing No. 46) is granted; and

2.

The fee approved in Filing No. 45 is increased by $1,443.

DATED this 20th day of June, 2011.
BY THE COURT:
S/Laurie Smith Camp
United States District Judge

2