Muehlenkamp, Jill v. Berryhill, Nancy et al

Filing 23

ORDER granting 20 Motion for Attorney Fees. Signed by District Judge William M. Conley on 4/14/2020. (kwf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JILL MUEHLENKAMP,
Plaintiff,

ORDER

v.

17-cvB300-wmc

ANDREW SAUL,
Commissioner of Social Security,
Defendant.

On October 24, 2017, 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 Jill

Muehlenkamp’s attorney’s petition for fees pursuant to § 406(b)(1) in the amount of
$631.37 (dkt. #20), to which defendant has not objected (dkt. #22).

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 $631.37, which
represents $13,967.50 withheld from the amount awarded to plaintiff in past-due benefits
less the prior EAJA fee awards totaling $13,336.13.1 Having considered the supporting

The court notes $13,967.50 was withheld from past-due benefits; however, counsel was previously
awarded EAJA fees in the amount of $5,336.13 (dkt. #18) in this case and awarded $8,000 in EAJA
fees in related case no. 14-cv-449.
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materials filed by plaintiff's attorney, and hearing no objection from plaintiff or defendant,
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 $631.37 (dkt. #20) is GRANTED.
Entered this 14th day of April, 2020.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

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