Martinez v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

ISABEL PEREZ MARTINEZ,

Plaintiff, v. Case No. 8:19-cv-2740-AEP KILOLO KIJAKAZI,

Acting Commissioner of Social Security,1

Defendant. /

ORDER

This cause comes before the Court upon Plaintiff’s Unopposed Motion for Attorney’s Fees under 42 U.S.C. § 406(b). (Doc. 25). On March 16, 2020, 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. 25-2). As a result of the favorable decision, Plaintiff’s counsel now seeks payment of fees in the amount of $8,852.25 pursuant to 42 U.S.C. § 406(b). The Court previously awarded Plaintiff’s fees in the amount of Kilolo Kijakazi is now the Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Acting Commissioner Kilolo Kijakazi should be substituted for Commissioner Andrew M. Saul as the defendant in this matter. No further action needs to be taken to continue this matter by reason of the last sentence of section $3,788.00 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Doc. 24). The Commissioner does not oppose the requested relief.

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 attorney’s 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 $8,852.25 from Plaintiff’s past-due benefits for possible payment of attorney’s fees in federal court (Doc. 25-2, at 3). Upon review of the fee agreement (Doc. 25-1) and the itemization of services rendered by counsel (Doc. 25-3), the Court determines that an award of fees in the amount of $8,852.25 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 $8,852.25 pursuant to 42 U.S.C. § 406(b).

3. Plaintiff’s counsel is directed to reimburse to Plaintiff the $3,788.00 in fees paid pursuant to the EAJA.

DONE AND ORDERED in Tampa, Florida, on this 10th day of November, 2021.

ANTHON; E. PORCELLI

United Sfates Magistrate Judge cc: Counsel of Record