Opinion
Case No: 6:16-cv-1986-Orl-37DCI
10-14-2020
JAVIER PINEIRO ORTIZ, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
This cause comes before the Court for consideration without oral argument on the following motion:
MOTION: Unopposed Request for Authorization to Charge a Reasonable Fee Pursuant to 42 U.S.C. § 406(b) (Doc. 28)
FILED: October 14, 2020
THEREON it is Recommended that the motion is GRANTED.
Plaintiff's counsel moves for an award of attorney fees pursuant to 42 U.S.C. § 406(b)(1). Doc. 28 (the Motion). Plaintiff's counsel states that following the Court's reversal of the Commissioner's decision denying disability benefits and remand of the case for further administrative proceedings, Plaintiff was awarded $31,619.50 in past-due benefits. Doc. 28 at 2. A quarter of the total amount of benefits awarded in this matter equates to $7,904.87. See 42 U.S.C. § 406(b)(1) (recovery of such fees under this section may not exceed 25% of the total past- due benefits). Plaintiff's counsel, however, only seeks to recover $4,892.50 in attorney fees pursuant to § 406(b). Doc. 28 at 2. Plaintiff's counsel states that the fees he seeks to collect includes a deduction of the attorney fees ($3,012.37) previously awarded under the Equal Access to Justice Act (EAJA). Id. at 2; see Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1274 (11th Cir. 2010) (holding that counsel may effectuate the refund of a smaller EAJA award by either refunding the amount awarded under the EAJA to the client or deducting that amount from counsel's request for § 406(b) fees). Upon review, the undersigned finds that Plaintiff's counsel's request for $4,892.50 in attorney fees does not run afoul of the limit imposed by § 406(b) and is reasonable under the circumstances of this case.
The Motion is unopposed. Doc. 28 at 3.
Accordingly, it is respectfully RECOMMENDED that the Motion (Doc. 28) be GRANTED and Plaintiff's counsel be authorized to charge and collect from Plaintiff the sum of $4,892.50 in attorney fees.
NOTICE TO PARTIES
A party has fourteen days from this date to file written objections to the Report and Recommendation's factual findings and legal conclusions. A party's failure to file written objections waives that party's right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1.
Recommended in Orlando, Florida on October 14, 2020.
/s/_________
DANIEL C. IRICK
UNITED STATES MAGISTRATE JUDGE Copies furnished to:
Presiding District Judge
Counsel of Record
Unrepresented Party
Courtroom Deputy