Zummo, Peter v. Colvin, Carolyn

Filing 18

ORDER granting 15 Unopposed Motion for Attorney Fees under 42 U.S.C. §406 (b). Plaintiff's counsel awarded attorney fees in the amount of $9,574.30. Signed by District Judge William M. Conley on 4/23/2019. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
PETER ZUMMO,
Plaintiff,

ORDER

v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,

14-cvB858-wmc

Defendant.

On July 27, 2015, the court issued an order 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 entered on July 29, 2015. Now before the court is plaintiff
Peter Zummo’s attorney’s petition for fees pursuant to § 406(b)(1) in the amount of
$9,574.30, to which defendant has indicated she has no objection. (Dkt. #15.)

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 $9,574.30,
which represents the difference between the prior EAJA fee award of $5,570.75 (dkt. #13)
and $22,160.00 withheld from the amount awarded to plaintiff in past-due benefits (less
$9,574.30 paid to another attorney in a different firm). Having considered the supporting
materials filed by plaintiff's attorney, and hearing no objection from plaintiff or defendant,

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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, 535 U.S. 789, 796 (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 42
U.S.C. § 406(b)(1) in the amount of $9,574.30 (dkt. #15) is GRANTED.
Entered this 23rd day of April, 2019.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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