Bailey v. Commissioner of Social Security

Filing 29

ORDER granting 27 Motion for Attorney Fees; adopting Report and Recommendations re 28 Report and Recommendations. Signed by Judge James L. Graham on 10/10/2018. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Charles E. Bailey,
Plaintiff,
v.

Case No. 2:13-cv-60

Commissioner of
Social Security,
Defendant.
ORDER
By

previous

order

of

this

court,

the

decision

of

the

Commissioner in this case was reversed, and the matter was remanded
for further administrative proceedings.

This court also awarded

plaintiff attorney’s fees under the Equal Access to Justice Act
(“EAJA”) in the amount of $7,300.00.

On August 29, 2018, counsel

for plaintiff filed a motion for an award of attorney’s fees
pursuant to 42 U.S.C. §406(b).

Counsel seeks an award of fees

under §406(b) in the amount of $10,140.00, payable from plaintiff’s
past due benefits.

However, counsel acknowledges that under

Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002), this amount must
be reduced by the EAJA award of attorney’s fees, resulting in a net
fee in the amount of $2,840.00. The Commissioner has not responded
to the motion.
On September 20, 2018, the magistrate judge issued a report
and recommendation regarding the motion.

The magistrate judge

noted that following the remand of this case, the Commissioner
issued

a

plaintiff.

fully

favorable

decision

awarding

benefits

to

the

Counsel was awarded fees by the Social Security

Administration for his work before the agency.

Counsel has now

submitted an itemized list of his work before this court, and
claims fees totaling $10,124.00, less the amount of the EAJA award.
Plaintiff and his counsel agreed to an attorney fee of 25% of the
past due benefits, and the claimed fee does not exceed
amount.

that

After considering the appropriate factors, the magistrate

judge recommended that the motion be granted, and that plaintiff’s
counsel be awarded a net attorney’s fee of $2,840.00.
The report and recommendation specifically advised the parties
that failure to object to the report and recommendation within
fourteen days “will result in a waiver of the right to de novo
review by the District Judge and waiver of the right to appeal the
judgment of the District Court.”

Doc. 28, p. 4.

The time period

for filing objections to the report and recommendation has expired,
and no party has objected to the report and recommendation.
The

court

adopts

the

magistrate judge (Doc. 28).
granted.

report

and

recommendation

of

the

The motion for fees (Doc. 27) is

Pursuant to 42 U.S.C. §406(b)(1), plaintiff’s counsel is

hereby awarded a net attorney fee in the amount of $2,840.00,
payable from plaintiff’s past due benefits.

Date: October 10, 2018

s/James L. Graham
James L. Graham
United States District Judge

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