IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MICHAEL PATRICK ANDERSON, )

Plaintiff, )

)

v. ) Civil Action No. 11-00582-N

)

CAROLYN W. COLVIN, )

Acting Commissioner of Social Security,1 )

Defendant. )

ORDER

This action is before the Court on the petition for attorney’s fees under 42 

U.S.C. § 406(b) (Doc. 28) filed by Quinn E. Brock, Esq. (“Brock”), counsel for the 

Plaintiff claimant, in which Brock requests “an award of $9,419.75...”2 The 

Defendant Commissioner of Social Security (“the Commissioner”) has timely 

responded, stating no opposition. (See Doc. 30). Upon consideration, the Court 

finds that the petition is due to be GRANTED as set forth herein.

I. Background

On October 11, 2011, the Plaintiff, represented by Brock, instituted this 

action by filing a complaint seeking judicial review of an unfavorable decision of the

 1 Carolyn W. Colvin, who became Acting Commissioner of Social Security on February 14, 

2013, is automatically substituted for the previous Commissioner, Michael J. Astrue, as the 

Defendant in this action. See Fed. R. Civ. P. 25(d); 45 U.S.C. § 405(g) (“Any action 

instituted in accordance with this subsection shall survive notwithstanding any change in 

the person occupying the office of Commissioner of Social Security or any vacancy in such 

office.”); Rivers v. Colvin, No. 2:12-CV-00792-VEH, 2013 WL 3992507, at n.1 (N.D. Ala. 

Aug. 2, 2013).

2 By consent of the parties (see Doc. 19), the Court has designated the undersigned United 

States Magistrate Judge to conduct all proceedings and order the entry of judgment in this 

civil action under 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. (See Doc. 20).

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Commissioner under 42 U.S.C. § 405(g). (Doc. 1). After the Commissioner filed her 

answer (Doc. 11) to the complaint and the Plaintiff filed his brief identifying errors 

in the Commissioner’s decision (Doc. 13), on July 5, 2012, the Commissioner filed an 

unopposed motion to remand under sentence four of § 405(g) (Doc. 18). The Court 

granted the motion to remand and entered judgment accordingly on July 13, 2012. 

(Docs. 21, 22). The Plaintiff filed a motion for attorney’s fees under the Equal 

Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d)3 (Doc. 25) on October 5, 2012, 

which the Court granted on October 23, 2012, awarding the Plaintiff $2,062.50 in 

attorney’s fees under EAJA (see Doc. 27).

Following remand to the Social Security Administration (SSA), the 

Commissioner ultimately issued a favorable decision for the Plaintiff on February 

25, 2013 (see Doc. 28-5 at 2), awarding him various past-due benefits. Notices of the 

various award amounts were issued April 2 (Doc. 28-5), August 5 (Doc. 28-6), and 

September 30 (Docs. 28-7, 28-8) of 2013. On February 3, 2014, based on an 

approved fee petition, the SSA awarded Brock $6,000.00, who ultimately received 

$5,911.00 after an $89 administrative fee was deducted. (Doc. 28 at 3; Doc. 28-10).

 3

[S]uccessful Social Security benefits claimants may request a fee award under the 

EAJA. Under the EAJA, a party that prevails against the United States in court 

may be awarded fees payable by the United States if the government's position in 

the litigation was not “substantially justified.” 28 U.S.C. § 2412(d)(1)(A). EAJA fees 

are awarded to the prevailing party in addition to and separate from any fees 

awarded under 42 U.S.C. § 406(b). See Gisbrecht, 535 U.S. at 796, 122 S. Ct. at 1822; 

Reeves v. Astrue, 526 F.3d 732, 736 (11th Cir. 2008). Unlike § 406(b) fees, which are 

taken from the claimant's recovery, EAJA fees are paid from agency funds.

Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010).

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In a status letter dated October 28, 2014, the SSA informed Brock that it was 

“withholding the amount of $9419.75, which represents the balance of 25 percent of 

the past-due benefits for [the Plaintiff], in anticipation of direct payment of an 

authorized attorney’s fee. We previously paid you $6000.00 under section 206(A) of 

the Social Security Act, as amended, for your services before the administration. 

We are writing at this time to determine whether you have petitioned the United 

States District Court for the Southern District of Alabama for a fee for your services 

before the court.” (Doc. 28-11 at 2). The status letter appears to have been stamped 

and initialed by Brock as having been received October 31, 2014. (Id. (lower-right 

corner)).

Brock filed the present petition on November 20, 2014. (See Doc. 28). Per 

Brock’s representations in his petition, “[t]wenty-five percent of the PlaintiffClaimant's past due primary benefits was $15,419.75 ($10,285.25 for claimant’s 

case, $ 2,567.25 for dependant C.A., and $2,567.25 for dependant M.A) and a 

balance of $9,419.75 remains available in anticipation of direct payment of an 

authorized attorney’s fee according to the Commissioner's status letter dated

October 28, 2014.” (Doc. 28 at 4). Brock now requests that the Court issue an order 

awarding him the $9,419.75 under § 406(b).4

 4 Cf. Thomas v. Astrue, 359 F. App'x 968, 971 (11th Cir. 2010) (per curiam) (unpublished) 

(“The Commissioner ultimately awarded Thomas $63,703.36 in total past-due social 

security benefits and set aside 25 percent of that award ($15,925.84) for attorney's fees. The 

attorney who represented Thomas during the administrative proceedings was awarded 

$5,300 in fees under § 406(a), leaving a balance of $10,625.84 for attorney's fees available 

under § 406(b).”).

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II. Analysis

[U]nder 42 U.S.C. § 406(b), a court entering judgment in favor of a Social 

Security benefits claimant who was represented by an attorney “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.” 42 

U.S.C. § 406(b)(1)(A). Assuming that the requested fee is within the 25 

percent limit, the court must then determine whether “the fee sought is 

reasonable for the services rendered.” Gisbrecht v. Barnhart, 535 U.S. 789, 

807, 122 S. Ct. 1817, 1828, 152 L. Ed. 2d 996 (2002). For example, courts 

may reduce the requested fee if the representation has been substandard, 

if the attorney has been responsible for delay, or if the benefits are large 

in comparison to the amount of time the attorney spent on the case. Id. at 

808, 122 S. Ct. at 1828. A § 406(b) fee is paid by the claimant out of the 

past-due benefits awarded. 42 U.S.C. § 406(b)(1)(A). 

Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1271 (11th Cir. 2010).5 “42 U.S.C. § 

406(b) authorizes an award of attorney's fees where[, as here,] the district court 

remands the case to the Commissioner of Social Security for further proceedings, 

and the Commissioner on remand awards the claimant past-due benefits.” Bergen 

v. Comm'r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006) (per curiam).

a. Timeliness

The Eleventh Circuit has held that “Fed. R. Civ. P. 54(d)(2) applies to a § 

406(b) attorney’s fee claim.” Id. Rule 54(d)(2)(B)(i) provides that, “[u]nless a 

statute or a court order provides otherwise, [a] motion[ for attorney’s fees] must be 

filed no later than 14 days after the entry of judgment.” Here, in ordering remand, 

 5 “Under 42 U.S.C. § 406(b)(2), it is a criminal offense for an attorney to collect fees in 

excess of those allowed by the court.” Jackson, 601 F.3d at 1271. See also Gisbrecht, 535 

U.S. at 795-96 (“The prescriptions set out in §§ 406(a) and (b) establish the exclusive regime 

for obtaining fees for successful representation of Social Security benefits claimants. 

Collecting or even demanding from the client anything more than the authorized allocation 

of past-due benefits is a criminal offense. §§ 406(a)(5), (b)(2) (1994 ed.); 20 CFR §§ 

404.1740–1799 (2001).”).

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the Court did not specify a deadline within which the Plaintiff’s counsel could seek 

attorney fees following an award of past due benefits by the Commissioner. The 

Court is also unaware of any statute, standing order, or local rule that would 

provide for a different time to file. Thus, Brock’s § 406(b) petition is subject to Rule 

54(d)(2)’s 14-day deadline. The Eleventh Circuit, however, has not yet decided 

when this 14-day period begins to run for § 406(b) petitions. See id. at 1277-78 (“To 

determine whether the petitions were timely requires deciding when the 14 day 

period for filing the petitions provided in the rules begins to run for a § 406(b) 

petition. Because the Commissioner has not objected to the timeliness of the 

attorney's fee petitions, we do not address this issue in this case and merely hold 

that the petitions were timely.”).

On remand, the Commissioner issued a favorable decision for the Plaintiff on 

February 13, 2013, and notices of various awards of past-due benefits were sent in 

April, August, and September of 2013.6 The SSA’s status letter to Brock that it

was withholding a portion past-due benefits in anticipation of a court-authorized 

attorney’s fee (the notice that apparently prompted the present petition) was dated 

October 28, 2014, and was stamped as received by Brock on October 31, 2014. (See 

Doc. 28-11 at 2). Nevertheless, Brock did not file the present fee petition until 

November 20, 2014 – over a year after the various past-due benefit award notices

were issued, and twenty days after receiving the status letter. If it were to consider 

 6 The August 2013 notice expressly advises: “Section 206(B) of the Social Security Act [42 

U.S.C. § 406(b)], as amended, governs fees for services before the court. If your lawyer 

wishes to receive a fee for those services, he must send the petition for those fees to [this 

Court].” (Doc. 28-6 at 5).

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only these circumstances, the Court doubts that the petition would be considered 

timely under Rule 54(d)(2). See Wilson v. Comm'r of Soc. Sec., No. 5:05-CV-434-OCPRL, 2012 WL 4760913, at *1 (M.D. Fla. Oct. 5, 2012) (“Courts have construed th[e 

Bergen] rule liberally, holding that the fourteen day period begins to run after the 

plaintiff is served with the SSA's notice of awarding benefits.” (citing cases)); id. at 

*1-2 (“On July 2, 2012, the Social Security Administration (‘SSA’) issued a letter 

notifying Plaintiff's counsel, that it withheld $74,459.75 of the award for attorney's 

fees, which represents twenty-five percent of Plaintiff's award. Plaintiff asserts, 

however, that this letter was not received until July 23, 2012. Subsequently, on 

July 31, 2012, Plaintiff filed the instant Motion seeking $50,000, in attorneys' fees, 

pursuant to the ‘Fee Agreement—SSI and Social Security’ dated May 7, 2003...

Here, although the notice from the SSA is dated July 2, 2012, the Court accepts 

Plaintiff's attorneys' representations that (i) the letter was not received until July 

23, 2012, and (ii) that this is the first notice Plaintiff received from the SSA 

indicating the amount of fees withheld. Thus, since Plaintiff filed this Motion on 

July 31, 2012, eight days after counsel was notified of the amount of money 

withheld for fees, the Court finds Plaintiff's Motion timely.” (docket citations 

omitted)).

Though the Commissioner has stated she “has no objection to the petition” 

(Doc. 30 at 1), that in itself does not waive the issue of timeliness. As the 

Commissioner herself acknowledges (see Doc. 30), “[t]he Supreme Court has noted 

that the Commissioner ‘has no direct financial stake’ in § 406(b) fee awards to a 

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claimant's attorney; instead, the Commissioner ‘plays a part in the fee 

determination resembling that of a trustee for the claimants.’ ” Thomas v. Astrue, 

359 F. App'x 968, 972 n.4 (11th Cir. 2010) (per curiam) (unpublished). 

The Eleventh Circuit has shown sympathy to an attorney who found himself 

in a situation similar to Brock’s. In vacating the district court’s dismissal of that

attorney’s § 406(b) fee petition as untimely under Rule 54(d)(2) and remanding with 

instructions that the district court determine the fees owed, the Eleventh Circuit

stated:

We are very sympathetic with the attorney's plight under the unique 

circumstances created by a remand judgment under sentence four of 42 

U.S.C. § 405(g). Our understanding is the amount of fees owed under a 

contingency arrangement is not established for months after remand, 

until the Social Security Administration determines the amount of the 

client's award. In Bergen v. Comm'r of Soc. Sec., 454 F.3d 1273 (11th Cir.

2006), we suggested the best practice for avoiding confusion about the 

integration of Fed. R. Civ. P. 54(d)(2)(B) into the procedural framework of 

a fee award under 42 U.S.C. § 406 is for a plaintiff to request and the 

district court to include in the remand judgment a statement that 

attorneys fees may be applied for within a specified time after the 

determination of the plaintiff's past due benefits by the Commission. 454 

F.3d at 1278 n.2. As we understand it, however, the best practice has not 

been a universally-workable solution. Perhaps another vehicle for creating 

some much needed certainty in this area of the law is for the district 

courts to fashion a general order or a local rule permitting district-wide 

application of a universal process for seeking fees under these unique 

circumstance. It is our hope the district courts, in doing so, will keep in 

mind Congress's intent behind § 406(b), to encourage attorneys to 

represent Social Security claimants. See Bergen, 454 F.3d at 1276.

Blitch v. Astrue, 261 F. App'x 241, 242 n.1 (11th Cir. 2008) (per curiam) 

(unpublished).

Given that 1) the question of when Rule 54(d)(2)’s 14-day period begins to run 

for § 406(b) petitions remains unsettled in this Circuit, (2) the Court did not specify 

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a deadline for such a petition in remanding the case, (3) this district does not have a 

general order, local rule, or other set procedure regarding such petitions, (4) the fact 

that the Plaintiff’s past-due benefits awards were not determined until months after 

remand, (5) the Commissioner has voiced no opposition, and (6) the Plaintiff was 

clearly put on notice by his retainer agreement with Brock that he would have to 

pay Brock 25% of any awarded past-due benefits, see infra., the Court will deem 

Brock’s present § 406(b) petition timely.

b. Reasonableness

In Gisbrecht v. Barnhart, the Supreme Court considered 42 U.S.C. § 

406(b) and clarified its impact on the district court's role in awarding a 

reasonable fee following a favorable claim for Social Security benefits. See

535 U.S. 789, 807, 122 S. Ct. 1817, 1828, 152 L. Ed. 2d 996 (2002). 

Although § 406(b)(1)(A) gives district courts the power to “determine and 

allow as part of its judgment a reasonable fee” following a favorable claim 

for Social Security benefits, 42 U.S.C. § 406(b)(1)(A), it does not empower 

them to ignore the fee agreements entered into by parties when 

determining what a reasonable fee would be, see Gisbrecht, 535 U.S. at 

807, 122 S. Ct. at 1828 (concluding that “ § 406(b) does not displace 

contingent-fee agreements as the primary means by which fees are set”). 

Instead, courts must look to the agreement made by the parties and 

independently review whether the resulting fee is reasonable under the 

circumstances. Id. Accordingly, [a court] must look to the fee agreement 

made by [a claimant] and his attorney.

Keller v. Comm'r of Soc. Sec., 759 F.3d 1282, 1284 (11th Cir. 2014).

In retaining Brock to represent him, the Plaintiff entered into a Contract for 

Employment for Representation in Social Security Claim (Doc. 28-4) (“the 

Contract”). The contract provides, in relevant part, as follows:

I agree that if the Social Security Administration favorably decides the 

claim(s) at the initial level, the reconsideration level, at the hearing level 

before the case has ever been to the Appeals Council, or the first time at 

the Appeals Council level, I will pay my Representative a fee equal to the 

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lesser of a) 25% of the past-due benefits due to me and my family 

resulting from my claim(s) or b) $6000.00 (or that amount above $6000.00 

that is authorized as the maximum fee pursuant to 42 U.S.C. § 406(a)(2)). 

If I win at any step after my case has been to the Appeals Council for the

first time, (i.e. if I win in federal court, or I win at any time after a federal 

court or Appeals Council remand) then I agree to pay 25% with no cap. In 

no case will the fee charged be greater than the fee properly authorized by 

the Social Security Administration and/or by a court.

...

...If any fees are awarded in my case under [EAJA], I agree to assign any 

EAJA award to the Representative, subject to reimbursement of the lesser 

of any fee awarded under EAJA or 42 U.S.C. § 406(b).

(Doc. 28-4 at 2-3). Because the Plaintiff won “after a federal court or Appeals 

Council remand[,]” under the terms of the contract, Brock is due an attorney’s fee of 

“25% with no cap.” Read in context, the Court deems this provision to provide for 

an attorney’s fee of “25%[ of the past-due benefits due to the Plaintiff and his family 

resulting from his claims] with no cap.”

The Court notes that this fee agreement, in its use of “past-due benefits due,”

does not track the language of § 406(b)(1)(A), which “prohibits fee agreements from 

providing for a fee ‘in excess of 25 percent of the total of the past-due benefits to 

which the claimant is entitled.’ ” Keller, 759 F.3d at 1285 (quoting 42 U.S.C. § 

406(b)(1)(A)) (emphasis added). “[T]he agreement, not the statute, provides the 

‘primary means by which fees are set.’ ” Id. (quoting Gisbrecht, 535 U.S. at 807). 

Recently, the Eleventh Circuit interpreted an “agreement between [a Social 

Security claimant] and his attorney—which call[ed] for a fee in the amount of 25 

Case 1:11-cv-00582-N Document 31 Filed 01/30/15 Page 9 of 14
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percent of past-due benefits owed—as providing for a fee of 25 percent of past-due 

benefits that had not already been paid to [the claimant].”7 Id. at 1284-85.

In Gisbrecht v. Barnhart, the Supreme Court

explained that even when a contingency agreement complies with the 

statutory limit and caps the fee at 25 percent of the claimant's benefits 

award, “§ 406(b) calls for court review of [contingency fee] arrangements 

as an independent check, to assure that they yield reasonable results in 

particular cases.” [535 U.S.] at 807, 122 S. Ct. at 1828.

Even when there is a valid contingency fee agreement, Gisbrecht sets 

forth certain principles that a district court should apply to determine if 

the attorney's fee to be awarded under § 406(b) is reasonable. See id. at 

808, 122 S. Ct. at 1828. Under Gisbrecht the attorney for the successful 

social security benefits claimant must show that the fee sought is 

reasonable for the services rendered. Id., 122 S. Ct. at 1828. The district 

court may reduce the fee based on the character of the representation and 

the results achieved; and if the recovered benefits are large in comparison 

to the time the claimant's attorney invested in the case, a downward 

adjustment may be in order. Id., 122 S. Ct. at 1828. The Gisbrecht Court 

held that “§ 406(b) does not displace contingent-fee agreements within the 

statutory ceiling [of 25 percent of the claimant's recovered benefits]; 

instead, § 406(b) instructs courts to review for reasonableness fees yielded 

by those agreements.” Id. at 808–09, 122 S. Ct. at 1829.

Thomas, 359 F. App'x at 974-75 (footnote omitted).

Evidenced by the various notices of benefit awards Brock has submitted with 

his petition, the Plaintiff and his family were awarded $61,679.00 in past-due 

benefits - $41,141.00 to the Plaintiff in Retirement, Survivors, and Disability 

Insurance benefits, from which the SSA withheld $10,285.25 “to pay the lawyer” 

(Doc, 28-6 at 2, 5), and $10,269.00 each in Retirement, Survivors, and Disability 

 7 In so doing, the court determined “that the language found in the contingent-fee 

arrangement [wa]s ambiguous” and thus, as it regularly does in such circumstances, 

“construe[d the] contract[] against the drafting party.” Keller, 759 F.3d at 1284.

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Insurance benefits8 to the Plaintiff’s two minor children, from which the SSA 

withheld $2,567.25 each ($5,134.50 total) “to pay the representative.” (Doc. 28-7 at 

2-4; Doc. 28-8 at 2-4). Thus, Brock is correct that his total fees would be capped, 

both statutorily and under the terms of his contingency fee agreement with the 

Plaintiff, at $15,149.75 (i.e. 25% of $61,679.00), $6,000.00 of which has already been 

awarded him by the SSA for his services in representing the Plaintiff there. See 42 

U.S.C. § 402(a)(1) (“Except as provided in paragraph (2)(A), whenever the 

Commissioner of Social Security, in any claim before the Commissioner for benefits 

under this subchapter, makes a determination favorable to the claimant, the 

Commissioner shall, if the claimant was represented by an attorney in connection 

with such claim, fix (in accordance with the regulations prescribed pursuant to the 

preceding sentence) a reasonable fee to compensate such attorney for the services 

performed by him in connection with such claim.”). Thus, the Court’s duty now is to 

determine whether it is reasonable for Brock to also receive the remaining 

$9,149.75 for his services to the Plaintiff under their contingency fee agreement.

 8 Such benefits are provided for “under Title II of the Social Security Act, 42 U.S.C. § 

423... The payment of attorney's fees for Title II claims is governed by 42 U.S.C. § 406...” 

Jackson, 601 F.3d at 1270 n.2.

The Plaintiff appears to have also been awarded past-due Supplemental Security 

Income (SSI) benefits. (See Doc. 28-5). “SSI disability benefits[ are provided for] under 

Title XVI of the Social Security Act, 42 U.S.C. § 1381a...[T]he payment of attorney's fees for 

Title XVI claims is governed by 42 U.S.C. § 1383(d). However, Congress has extended the 

Title II attorney's fee payment system to claims brought under Title XVI. See Social 

Security Protection Act of 2004, Pub. L. No. 108–203, § 302, 118 Stat. 493, 519–21, as 

amended by Social Security Disability Applicants' Access to Professional Representation 

Act of 2010, Pub. L. No. 111–142, 124 Stat. 38.” Id. However, Brock’s petition does not 

appear to request an award of fees based on the past-due SSI benefits. (See Doc. 28-1 at 10 

(“Here, by statute, the attorney fee comes solely from past-due Title II benefits. 42 U.S.C. § 

406(b)(1).”)).

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Brock’s sworn timesheet documenting the amount of time spent on 

representing the Plaintiff (Doc. 28-3 at 2-4; Doc. 28-2 at 2) indicates that he devoted 

53.25 hours to the endeavor. The Court finds that the benefits awarded to the 

Plaintiff are not so “large in comparison to the amount of time counsel spent on the 

case” such that “a downward adjustment is...in order.” Gisbrecht, 535 U.S. at 808.

A full award of $15,149.75 would result in an hourly rate of approximately $285. 

Brock has cited numerous district court cases approving § 406(b) fees that 

represented substantially higher hourly rates (see Doc. 28-1 at 12-15), and the 

undersigned has allowed a § 406(b) award that “render[ed] an hourly rate of 

approximately $1,536.81.” Ramsey v. Colvin, No. CIV.A. 12-00383-N, 2014 WL 

806419, at *2 n.5 (S.D. Ala. Feb. 28, 2014). 

By all accounts, Brock appears to have obtained excellent results for his 

client through his efforts, and a review of the docket for this action does not indicate 

that Brock has been responsible for any delay. For instance, his social security brief

was timely filed, he never requested a deadline extension, and he consented to the 

undersigned’s jurisdiction, thus allowing the undersigned to order remand rather 

than having to issue a recommendation to the district judge. Having considered the 

guidance set forth in Gisbrecht, the undersigned finds that it is reasonable for Brock 

to receive his full 25% contingency fee for his representation of the Plaintiff.

c. Refund

As both Brock and the Commissioner correctly note, “an attorney who 

receives fees under both the EAJA and 42 U.S.C. § 406(b) must refund the smaller 

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fee to his client...” Jackson, 601 F.3d at 1274. “Although a refund paid by the 

claimant's attorney directly to the claimant would comply with the EAJA Savings 

Provision,...a refund is[ not] the only way to comply...[T]he attorney may choose to 

effectuate the refund by deducting the amount of an earlier EAJA award from his 

subsequent 42 U.S.C. § 406(b) fee request...” Id. at 1274. 

Brock’s petition, however, is unclear as to which method he has chosen, as 

the petition states: “After the undersigned counsel refunds the $2,062.50 EAJA fee, 

the net attorney fee paid out of past due benefits will be $13,357.25 which is 25 

percent of past-due Title II benefits.” (Doc. 28-1 at 4). While the first clause 

indicates that Brock will issue a refund of his earlier EAJA award directly to the 

Plaintiff, the second clause changes course and appears instead to indicate that 

Brock wishes to instead simply have the earlier EAJA fee deducted from the present 

fee award (thus reducing the amount recovered from the Plaintiff’s past-due 

benefits).

Upon consideration, the Court finds that the most efficient course would be to 

simply reduce Brock’s present § 406(b) fee award by the previous EAJA award (i.e. 

$9,419.75 - $2,062.50 = $7,357.25), as this course would increase the amount of

past-due benefits the Plaintiff will be able to pocket directly9 and would eliminate 

any need for a Court-monitored refund procedure.10

 9 Cf. Jackson, 601 F.3d at 1273 (In its discussion of EAJA fees, the Supreme Court[ in 

Gisbrecht] recognized that in many cases, the EAJA effectively increases the portion of 

past-due benefits the successful Social Security claimant may pocket. That is precisely what 

Mr. Culbertson sought to do here. By deducting the amount of the EAJA award from his § 

406(b) fee request, he reduced the amount that Mr. Jackson would otherwise be required to 

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III. Conclusion

Accordingly, it is ORDERED that Brock’s petition for attorney’s fees under 

42 U.S.C. § 406(b) (Doc. 28) is GRANTED such that Brock is awarded attorney’s 

fees under § 406(b) in the sum of $7,357.25.

DONE and ORDERED this the 29th day of January 2015.

/s/ Katherine P. Nelson

KATHERINE P. NELSON

UNITED STATES MAGISTRATE JUDGE

 

pay in § 406(b) fees, thereby increasing the portion of past-due benefits payable directly to 

Mr. Jackson. (internal citation and quotation omitted)).

10 But see Jackson, 601 F.3d at 1272 (“The obligation to make the refund is imposed on the 

attorney. There is no language in the Savings Provision that requires courts to take any 

action with respect to the refund. In particular, nothing in the Savings Provision commands 

courts to order a specific refund procedure if the claimant's attorney has already taken 

other steps to effectuate the refund.”).

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