Myers v. Colvin

Filing 31

ORDER awarding attorney's fees re plaintiff's 23 Motion, signed by Judge Robert S. Lasnik. (SWT)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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MARTIN S. MYERS,
Plaintiff,

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v.
NANCY BERRYHILL, Acting
Commissioner of Social Security,

NO. C15-5687RSL
ORDER AWARDING ATTORNEY’S
FEES

Defendant.

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This matter comes before the Court on “Plaintiff’s Motion for Attorney’s Fees Pursuant

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to 42 U.S.C. § 406(b).” Dkt. # 23. Defendant agrees that the Court should award fees, but

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requests that plaintiff’s attorney be awarded a lesser amount than requested. Having reviewed

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the memoranda, declaration, and exhibits submitted by the parties, the Court finds as follows:
Pursuant to 42 U.S.C. § 406(b), plaintiff is entitled to an award of attorney’s fees in an
amount up to 25% of the claimant’s past-due benefits. The regulations define “past-due benefits”

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as the “total amount of payments . . . . that has accumulated to [a claimant] because of a

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favorable administrative or judicial determination or decision, up to but not including the month

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the determination or decision is made.” 20 C.F.R. § 416.1503. Both parties agree that the initial

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amount requested in plaintiff’s motion is incorrect, but they disagree regarding the date of the
relevant “determination or decision.” Defendant contends that the 25% calculation includes only
ORDER AWARDING ATTORNEY’S FEES - 1

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those benefits that accrued prior to the agency’s February 2018 finding that plaintiff met the

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medical requirements to receive Supplemental Security Income (“SSI”) and was therefore

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disabled. Plaintiff contends that his right to payment did not accrue until the agency determined

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that he was financially eligibility to receive SSI payments, which occurred in April 2018.
In SSI-only cases under Title XVI, there is no final determination as to the allowance of

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benefits until the claimant’s financial eligibility is established. See Brooks v. Colvin, C13-

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5797JRC (Dkt. # 32 at 2 and 5) (W.D. Wash. Sept. 30, 2016). Therefore, the favorable

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“determination or decision” triggering the accumulation of payments in this case is the financial
eligibility determination that occurred April 2018. The proper “past-due benefits” award for
purposes of determination of attorney’s fees is the amount accumulated through March 2018:1

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$33,598.46, 25% of which is $8,399.61. After subtracting the EAJA award of $6,355.36,

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plaintiff is hereby awarded a net 406(b) attorney’s fee of $2,044.25.

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Dated this 7th day of August, 2018.

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A

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Robert S. Lasnik
United States District Judge

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Although the Commissioner’s Program Operating Manual System would include in the term
“past-due benefits” all “payments accumulated because of a favorable decision through the month of
effectuation” (see https://secure.ssa.gov/apps10/poms.nsf/lnx/0203940007), plaintiff acknowledges that
this language is inconsistent with the federal regulations and seeks a fee calculation based on benefits
due “up to but not including the month the determination or decision is made” (20 C.F.R. § 416.1503).

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ORDER AWARDING ATTORNEY’S FEES - 2

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