Mills v. Commissioner of Social Security

Filing 43

ORDER granting 42 Motion for Attorney Fees. Signed by Magistrate Judge Amanda Arnold Sansone on 7/5/2017. (BEE)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
WESLEY MILLS,
Plaintiff,
v.

Case No.: 8:14-cv-699-T-AAS

NANCY W. BERRYHILL,1
Commissioner of Social Security,
Defendant.
______________________________________/
ORDER
This cause comes before the Court upon the request of Plaintiff’s Attorneys’ Motion for
Award of Attorney Fees Under 42 U.S.C. § 406(b) (Doc. 42). Following the entry of an Order
affirming the Commissioner’s decision on April 28, 2015 (Doc. 27), Plaintiff appealed to United
States Court of Appeals for the Eleventh Circuit. The Eleventh Circuit reversed and remanded
this case for further proceedings. See Mills v. Comm’r of Soc. Sec., 659 F. App’x. 541 (11th Cir.
2016). Upon remand, the Commissioner issued a favorable decision for Plaintiff resulting in an
award of disability benefits (Doc. 42-2). As a result of the favorable decision, Plaintiff’s counsel
now seeks payment of fees in the amount of $22,992.50 pursuant to 42 U.S.C. § 406(b), with the
amount of fees paid pursuant to the Equal Access to Justice Act (EAJA) to be reimbursed to
Plaintiff. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (finding that fee awards may be
made under both 42 U.S.C. § 406(b) and the EAJA but that the claimant’s attorney must refund to

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Fed.
R. Civ. P. 25(d), Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W.
Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by
reason of the last sentence of the Social Security Act, 42 U.S.C. § 405(g).
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the claimant the amount of the smaller fee).
Under 42 U.S.C. § 406(b), when a court renders a judgment favorable to a Social Security
claimant who was represented before the court by counsel, the court may allow a reasonable fee
for such representation, not to exceed twenty-five percent of the total past-due benefits to which
the claimant is entitled. 42 U.S.C. § 406(b)(1)(A). Here, the Social Security Administration
withheld a total of $28,992.50 from Plaintiff’s past-due benefits for possible payment of attorney’s
fees in federal court (Doc. 42-2). Upon review of the fee agreement (Doc. 42-1) and the
itemization of services rendered by counsel (Doc. 40), the Court determines that an award of fees
in the amount of $22,992.50 is reasonable and appropriate. Since Plaintiff already received an
award of fees in the amount of $15,026.89 pursuant to the EAJA (Doc. 41), Plaintiff’s counsel
shall reimburse Plaintiff for that amount.
Accordingly, after consideration, it is ORDERED:
1. Plaintiff’s Attorneys’ Motion for Award of Attorney Fees Under 42 U.S.C. § 406(b)
(Doc. 42) is GRANTED.
2. Plaintiff’s counsel is awarded fees in the amount of $22,992.50 pursuant to 42 U.S.C. §
406(b).
3. Plaintiff’s counsel is directed to reimburse to Plaintiff the $15,026.89 in fees paid
pursuant to the EAJA.
DONE AND ORDERED in Tampa, Florida on this 5th day of July, 2017.

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