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Morse v. Astrue

August 14, 2009

NATHANIAL MORSE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES

(DOC. 32)

Plaintiff proceeded with a civil action concerning review of a denial of Social Security Benefits. The matter had been referred to the Magistrate Judge for all purposes, including the entry of final judgment. Pending before the Court is Plaintiff's unopposed motion for attorney's fees, filed on May 22, 2009, which proofs of service reflect has been served on Defendant as well as on Plaintiff himself.*fn1

I. Background

Plaintiff prevailed in his action, filed on October 13, 2006, when, after briefs were filed by both parties, the parties stipulated to a remand to the agency in August 2007. Thereafter, Plaintiff was found to be disabled in agency proceedings, and counsel asserts that Plaintiff was awarded about $31,948.50 in retroactive benefits.

On November 7, 2007, pursuant to a stipulated order, the Court awarded Plaintiff attorney's fees and expenses under the Equal Access to Justice Act (EAJA) in the amount of $3,600.00. The order stated that it was without prejudice to the right of Plaintiff's counsel to seek fees under 42 U.S.C. § 406, subject to the provisions of the EAJA.

Plaintiff's counsel, Steven G. Rosales, of the Law Offices of Lawrence D. Rohlfing, seeks an award of attorney's fees pursuant to 42 U.S.C. § 406(b) in the amount of $7,987.00, less the amount already received in EAJA fees.

II. Motion for Fees

A. Legal Standards

With regard to the Social Security Act's provision for attorney's fees for services rendered in connection with judicial review of the administrative proceedings, 42 U.S.C. § 406(b) provides:

(b) Attorney fees

(1)(A) 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.

(B) For purposes of this paragraph--

(i) the term "past-due benefits" excludes any benefits with respect to which payment has been continued pursuant to subsection (g) or ...


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