Baisden v. Commissioner of Social Security

Filing 19

DECISION AND ENTRY - IT IS THEREFORE ORDERED THAT: 1. The Motion For Allowance Of Attorney Fees filed by Plaintiffs attorney (Doc. # 18 ) is GRANTED; 2. The Commissioner shall pay Plaintiffs attorney fees pursuant to 42 U.S.C. § 406(b)(1) in t he amount of $7,470.00; 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 (Doc. # 17 ); and 4. The case remains terminated on the docket of this Court. IT IS SO ORDERED. Signed by Magistrate Judge Sharon L. Ovington on 1/24/2019. (srb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
CRYSTAL BAISDEN,
Plaintiff,
vs.
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION,
Defendant.

: Case No. 3:16-cv-129
:
: Magistrate Judge Sharon L. Ovington
: (by full consent of the parties)
:
:
:
:
:
:

DECISION AND ENTRY
This case is before the Court upon Plaintiff’s Motion for Allowance of Attorney
Fees (Doc. #18). According to Plaintiff’s Motion, although the Commissioner cannot
consent to a fee under 42 U.S.C. § 406(b)(1), she does not object to the reasonableness of
the fee requested.
The Motion seeks an award of attorney fees under 42 U.S.C. § 406(b)(1) in the
total amount of $7,470.00. 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
$2,900.00 in attorney fees to Plaintiff’s counsel under the Equal Access to Justice Act
(EAJA). (Doc. #s 16, 17). The EAJA award, however, was subject to offset in the
amount of any debt Plaintiff owed the Government. See Doc. #17. 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 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).
IT IS THEREFORE ORDERED THAT:
1.

The Motion For Allowance Of Attorney Fees filed by Plaintiff’s
attorney (Doc. #18) is GRANTED;

2.

The Commissioner shall pay Plaintiff’s attorney fees pursuant to 42
U.S.C. § 406(b)(1) in the amount of $7,470.00;

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 (Doc. #17); and

4.

The case remains terminated on the docket of this Court.

IT IS SO ORDERED.
January 24, 2019

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

2