Miller v. Commissioner of Social Security

Filing 20

DECISION AND ENTRY - Accordingly, the Court hereby ORDERS that: 1. The Motion For Allowance Of Attorney Fees filed by Plaintiffs attorney(Doc. # 19 ) is GRANTED; 2. The Commissioner shall pay Plaintiffs attorney fees pursuant to 42 U.S.C.§ 406(b)(1) in the amount of $21,255.00; 3. Plaintiffs counsel shall refund to Plaintiff the amount of attorney fees, if any, he has actually received under the Equal Access To Justice Act; and 4. The case remains terminated on the docket of this Court. Signed by Magistrate Judge Sharon L. Ovington on 1/10/2017. (srb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MARY E. MILLER,
Plaintiff,

:
:
Case No. 3:15cv00153

vs.

:
Magistrate Judge Sharon L. Ovington

CAROLYN W. COLVIN,
Commissioner of the Social
Security Administration,
Defendant.

:
:
:

DECISION AND ENTRY

This social security case is before the Court upon the Motion For Allowance Of
Attorney Fees filed by Plaintiff’s attorney. (Doc. #19). The Commissioner has not
opposed or otherwise responded to the Motion.
Plaintiff’s counsel seeks an award of attorney fees under 42 U.S.C. § 406(b)(1) in
the total amount of $21,255.00. In the absence of opposition by the Commissioner, the
Motion and supporting Exhibits establish that an award of attorney fees is reasonable and
warranted under 42 U.S.C. § 406(b)(1) in the amount the Motion seeks.
In addition, the Court previously accepted the parties’ stipulation to an award of
$3,950.00 in attorney fees to Plaintiff’s counsel under the Equal Access to Justice Act
(EAJA). (Doc. #17). The award, however, was subject to offset in the amount of any

debt Plaintiff owed the Government. See id. The current record does not indicate
whether or not Plaintiff’s counsel actually received any of the EAJA award because of
the potential offset. Counsel, moreover, may not recover attorney fees under both the
EAJA and 42 U.S.C. § 406(b) for the same work. Plaintiff’s counsel must therefore
return to Plaintiff the amount of EAJA fees, if any, he has actually received. See
Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002).
Accordingly, the Court hereby ORDERS that:
1.

The Motion For Allowance Of Attorney Fees filed by Plaintiff’s attorney
(Doc. #19) is GRANTED;

2.

The Commissioner shall pay Plaintiff’s attorney fees pursuant to 42 U.S.C.
§ 406(b)(1) in the amount of $21,255.00;

3.

Plaintiff’s counsel shall refund to Plaintiff the amount of attorney fees, if
any, he has actually received under the Equal Access To Justice Act; and

4.

The case remains terminated on the docket of this Court.

January 10, 2017

s/Sharon L. Ovington
Sharon L. Ovington
United States Magistrate Judge