SAM A. JOYNER, U.S. Magistrate Judge.
Plaintiff's action was reversed and remanded by the Tenth Circuit Court of Appeals on August 25, 1999. This Court subsequently remanded the action to the Social Security Administration. Plaintiff filed a request for attorneys fees pursuant to the Equal Access to Justice Act ("EAJA") on November 29, 1999. Defendant and Plaintiff entered a stipulation and agreement with regard to the amount of attorneys fees to be awarded to Plaintiff, and Plaintiff was awarded $5,940.00 in EAJA fees.
On October 18, 2001, Plaintiff filed a motion for attorneys fees pursuant to 42 U.S.C. § 406 (b). Plaintiff requests fees for 44.25 hours of work at the rate of $150.00 per hour, for a total fee request of $6,637.50. Defendant objects to 9.75 hours of work, and asserts that the total fee award should be $5,175.00.
Plaintiff initially asserts that because Defendant entered into a stipulation with respect to the previously awarded EAJA fees, Defendant is prohibited from objecting to fees under 42 U.S.C. § 406 (b). Plaintiff does not present a legal theory to support Plaintiff's argument, but requests that the Court review the stipulation which the parties agreed to with regard to the EAJA motion. The stipulation provides that "upon settlement and negotiation" the parties agree to an EAJA fee. The Court finds nothing in the stipulation which supports Plaintiff's argument that the Defendant agreed that the EAJA fees incurred were reasonable. Rather, the parties, after "settlement and negotiation" agreed to an EAJA fee. The Court concludes that the prior agreed to EAJA fee does not require Defendant to agree to the currently requested § 406(b) fee.
The Court additionally notes that the statute permitting EAJA fees and the statute permitting § 406(b) are different, and different considerations may apply when determining whether to agree to a certain fee award. For example, under § 406(b), the fee award is made from money that would otherwise be awarded to the Plaintiff.
Plaintiff asserts that a reasonable attorney fee rate is $150.00 hours. Defendant does not object to Plaintiff's requested attorney fee rate.
Defendant objects to a total of 9.75 hours of attorney fee time. Defendant asserts that 2.75 hours were billed by the attorney when Plaintiff's cause of action was not before the Court. Defendant notes that under § 406(b) hours are recoverable only for time spent representing the claimant before the court. Plaintiff does not otherwise respond to this argument. The Court concludes that the 2.75 hours identified by Defendant should be excluded from Plaintiff's fee request.
Defendant additionally objects to time spent by Defendant on clerical tasks. Defendant notes that Plaintiff's attorney has combined his time entries for time spent on clerical tasks with time spent reviewing a file and writing letters to claimant. Defendant asserts that the Court not permit 7.0 hours of time which Defendant suggests is related to clerical tasks. Plaintiff does not respond to this argument. The Court concludes that 7.0 hours should be excluded from Plaintiff's fee request.
Plaintiff requests a reasonable attorney rate of $150.00 per hour multiplied by the number of reasonable hours of 34.50, which results in a total reasonable fee of $5,175.00. The Court concludes that Plaintiff is entitled to an award pursuant to § 406(b) of $5,175.00.
IT IS SO ORDERED.