Maciborka v. Commissioner of Social Security
Filing
26
ORDER granting 25 Motion for Attorney Fees. See Order for details. Signed by Magistrate Judge Anthony E. Porcelli on 9/12/2019. (VIV)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
GENE MACIBORKA,
Plaintiff,
v.
Case No. 8:16-cv-2432-T-AEP
ANDREW M. SAUL,
Commissioner of Social Security,
Defendant.
/
ORDER
This cause comes before the Court upon the Plaintiff’s Attorney’s Motion for an Award
of Attorney Fees Under 42 U.S.C. § 406(b) (Doc. 25). On September 27, 2017, this Court
entered an Order reversing and remanding the decision of the Commissioner under sentence
four of 42 U.S.C. § 405(g) (Doc. 21). Upon remand, the Commissioner issued a favorable
decision for Plaintiff resulting in an award of disability benefits (Doc. 25, Ex. 1). As a result
of the favorable decision, Plaintiff’s counsel now seeks payment of fees in the amount of
$15,181.75 pursuant to 42 U.S.C. § 406(b).
The Court previously awarded Plaintiff’s fees in the amount of $5,049.75 pursuant to
the EAJA (Doc. 24). Notwithstanding, Plaintiff’s counsel seeks payment of fees in the amount
of $15,181.75 pursuant to 42 U.S.C. § 406(b). Plaintiff’s attorney is aware that in the event this
motion is granted, he is under an obligation to refund to the Plaintiff the EAJA fees received,
up to the amount of the award (Doc. 25). The Commissioner does not oppose the requested
relief 1.
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Upon telephonic notice, the Defendant clarified that the Plaintiff’s Motion is unopposed.
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). A plaintiff’s counsel may
recover attorneys’ fees under both 42 U.S.C. § 406(b) and EAJA. Gisbrecht v. Barnhart, 535
U.S. 789, 796 (2002). The plaintiff’s attorney must, however, refund to the plaintiff the amount
of the smaller fee. Id. Here, the Social Security Administration withheld a total of $15,181.75
from Plaintiff’s past-due benefits for possible payment of attorney’s fees in federal court (Doc.
25). Upon review of the fee agreement (Doc. 25-2) and the itemization of services rendered by
counsel (Doc. 25-3), the Court determines that an award of fees in the amount of $15,181.75 is
reasonable and appropriate. Accordingly, it is hereby
ORDERED:
1. Plaintiff’s request for an award of attorney’s fees under 42 U.S.C. § 406(b) (Doc.
25) is GRANTED.
2. Plaintiff’s counsel is awarded fees in the amount of $15,181.75 pursuant to 42 U.S.C.
§ 406(b).
3. Plaintiff’s counsel is directed to reimburse to Plaintiff the $5,049.75 in fees paid
pursuant to the EAJA.
DONE AND ORDERED in Tampa, Florida, on this 12th day of September, 2019.
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cc: Counsel of Record
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