ALAZO
v.
COMMISSIONER OF SOCIAL SECURITY
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The court granted the motion for attorney's fees under 42 U.S.C. § 406(b) and ordered counsel to refund any fees received under the EAJA.
Plaintiff's counsel moved for attorney's fees under 42 U.S.C. § 406(b) after the Social Security Administration found the plaintiff disabled on remand…
The full statement of facts, procedural history, and disposition for this case are member content.
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Sammy Alazo counsel moves for an award of $8,073.00 in attorney’s fees under 42 U.S.C. § 406(b). (Doc. 27). The Commissioner does not oppose Mr. Alazo’s counsel’s request.2 (Id. at 7–8). Mr. Alazo applied for social security disability benefits, which was denied initially and on reconsideration. (Tr. 87, 108, 228). Mr. Alazo then requested a hearing before an ALJ, who found Mr. Alazo not disabled. (Tr. 25–56). The
remanded the ALJ’s decision for further consideration, and the Clerk entered judgment for Mr. Alazo. (Docs. 23, 24). The Commissioner found Mr. Alazo disabled on remand. (Doc. 27, Ex. 1). The Social Security Administration withheld $8,073.00 from Mr. Alazo’s past-
due benefits to pay his attorney’s fees. (Doc. 27, Ex. 1, p. 2). Mr. Alazo’s counsel now requests the full $8,073.00 from that award under 42 U.S.C. § 406(b). (Doc. 27). Under Section 406(b), when a court enters judgment favorable to a Social
Security claimant represented by counsel, the court may award attorney’s fees not to exceed twenty-five percent of the claimant’s total past-due benefits. 42 U.S.C. § 406(b)(1)(A). Based on the fee agreement that Mr. Alazo agreed his counsel could request twenty-five percent of past-due benefits for attorney’s
fees, an award of attorney’s fees of $8,073.00 is appropriate. See (Doc. 27, Ex. 2). The court awarded Mr. Alazo’s counsel $2,714.93 in attorney’s fees under the Equal Access to Justice Act (EAJA). (Doc. 26). When an attorney receives
attorney’s fees under the EAJA and Section 406(b), the attorney must refund the smaller fee. Black v. Culbertson, 470 F. App’x 737, 739 (11th Cir. 2012). Mr. Alazo counsel must refund any attorney’s fees awarded under the EAJA. Thus, Mr. Alazo’s Motion for Attorney Fees Under 42 U.S.C. § 406(b) (Doc. 27) is GRANTED. Mr. Alazo’s counsel is awarded $8,073.00 in attorney’s fees and must refund to Mr. Alazo any attorney’s fees received under the EAJA. ORDERED in Tampa, Florida on August2, 2023. Aranda. Arne ih Sane.
AMANDA ARNOLD SANSONE
United States Magistrate Judge
NOTICE TO PARTIES
The parties have fourteen days from the date they are served a copy of this report to file written objections to this report’s proposed findings and recommendations or to seek an extension of the fourteen-day deadline to file written objections. 28 U.S.C. § 636(b)(1); 11th Cir. R. 3-1. A party’s failure to object timely in accordance with 28 U.S.C. § 636(b)(1) waives that party’s right to challenge on appeal the district court’s order adopting this report’s unobjected-to factual findings and legal conclusions. 11th Cir. R. 38-1.