Ellison v. Commissioner of Social Security

Filing 17

DECISION AND ENTRY- IT IS THEREFORE ORDERED THAT: 1. Plaintiffs Motion for Allowance of Attorney Fees (Doc. # 16 ) is GRANTED; 2. The Commissioner shall pay Plaintiffs attorney fees pursuant to 42 U.S.C. § 406(b)(1) in the amount of $14,00 0.00; 3. Plaintiffs counsel shall refund to Plaintiff the amount ofattorney fees, if any, he has actually received under the Equal Access to Justice Act (Doc. # 15 ); and 4. The case remains terminated on the docket of this Court. Signed by Magistrate Judge Sharon L. Ovington on 6/28/19. (kma)

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

: Case No. 3:17-cv-107
:
:
: 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. #16). The Commissioner has neither responded to nor opposed this Motion.
The Motion seeks an award of attorney fees under 42 U.S.C. § 406(b)(1) in the
total amount of $14,000.00. 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
$3,000.00 in attorney fees to Plaintiff’s counsel under the Equal Access to Justice Act
(EAJA). (Doc. #s 14-15). The EAJA award, however, was subject to offset in the
amount of any debt Plaintiff owed the Government. See Doc. #15. 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.

Plaintiff’s Motion for Allowance of Attorney Fees (Doc. #16)
is GRANTED;

2.

The Commissioner shall pay Plaintiff’s attorney fees pursuant
to 42 U.S.C. § 406(b)(1) in the amount of $14,000.00;

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. #15); and

4.

The case remains terminated on the docket of this Court.

IT IS SO ORDERED.
June 28, 2019

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

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