Opinion
Civil Action No. 4:21cv008-RCY-DEM
2023-04-10
Amber Nichol WIDMER, Plaintiff, v. Kilolo KIJAKAZI, Acting Commissioner of Social Security, Defendant.
Alan Stuart Graf, Alan Stuart Graf, PC Attorney at Law, P.C., Asheville, NC, for Plaintiff. Garry D. Hartlieb, United States Attorney Office, Norfolk, VA, for Defendant.
Alan Stuart Graf, Alan Stuart Graf, PC Attorney at Law, P.C., Asheville, NC, for Plaintiff. Garry D. Hartlieb, United States Attorney Office, Norfolk, VA, for Defendant.
MEMORANDUM ORDER
Roderick C. Young, United States District Judge
This matter is before the Court on Plaintiff's Motion for Attorney Fees Under § 406(b) of the Social Security Act (ECF No. 28). Defendant filed a response on March 22, 2023, stating no position as to Plaintiff's request for fees (Def. Response, ECF No. 29), and the Motion is ripe for review.
Based on the complexity of the underlying case and the time and lawyering skills necessary to handle Plaintiff's case effectively, and particularly given the complicated procedural history of the underlying adjudication and the constitutional issue implicated by Plaintiff's claim, the Court finds that Plaintiff's request for a fee award amounting to $19,687.50, which amount constitutes 25% of the back benefits awarded to Plaintiff, is reasonable. Because Plaintiff's counsel already received fees totaling $5,500.00 under the Equal Access to Justice Act ("EAJA") (see Order, ECF No. 26), and further because counsel cannot recover fees under both the EAJA and § 406(b), see Gisbrecht v. Barnhart, 535 U.S. 789, 796, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002), the Court finds that a reduction in the fee award by $5,500.00 is an appropriate and reasonable alternative to granting a full fee award but ordering counsel to reimburse Plaintiff with the amount of the lesser award, as a strict application of Gisbrecht might require. Id. at 796, 122 S.Ct. 1817 ("Fee awards may be made under both prescriptions, but the claimant's attorney must refund to the claimant the amount of the smaller fee." (internal quotations omitted)).
Accordingly, the Court GRANTS the Motion for fees and ORDERS pursuant to 42 U.S.C. § 406(b) that attorneys' fees in the amount of $14,187.50 are hereby awarded to Plaintiff's attorney, Alan Stuart Graf. The remaining balance held by the Social Security Administration shall be disbursed directly to Plaintiff, per the procedure described in Plaintiff's Notice of Award (ECF No. 28-1). When issuing the 406(b) check for payment to Plaintiff's attorney, the Commissioner is DIRECTED to subtract any applicable processing fees as allowed by statute.
$ 19,687.50 minus $5,500.00 in EAJA Fees.
It is so ORDERED.