Burgos v. Commissioner of Social Security

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA ORLANDO DIVISION

FELICITA BURGOS,

Plaintiff,

v. Case No. 6:17-cv-623-Orl-37MCR

COMMISSIONER OF SOCIAL SECURITY,

Defendant. _____________________________________

ORDER After filing a Complaint in this Court, the Commissioner of Social Security (“Commissioner”) issued a decision finding Plaintiff disabled since April 3, 2013. (Doc. 29-2.) Pursuant to 42 U.S.C. § 406(b), the Commissioner withheld $29,721.25 from Plaintiff’s past-due benefits for the possible payment of attorney’s fees. (Docs. 29-3; 30.) Plaintiff’s counsel now seeks an award of $19,721.12 pursuant to the contingent fee contract with Plaintiff. (Doc. 29 (“Motion”).) Upon receipt of payment, Plaintiff’s counsel shall refund $3,703.24 to Ms. Burgos that was received pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Id. at 1–2; see also Docs. 26–28.) The Motion is unopposed. (Doc. 29-8.) On referral, United States Magistrate Judge Monte C. Richardson recommends the Court grant the Motion. (Doc. 30 (“R&R”).) No party objected to the R&R, and the time for doing so has now passed. Absent objections, the Court has examined the R&R only for clear error. See Wiand v. Wells Fargo Bank, N.A., No. 8:12-cv-557-T-27EAJ, 2016 WL 355490, at *1 (M.D. Fla. Jan. 28, 2016); see also Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006). In doing so, the Court takes issue with only one portion of the R&R—Magistrate Judge Richardson’s recommendation

the Court direct the Clerk to enter judgment accordingly. (Doc. 30, p. 6.) Judgment has already been entered in this case. (See Doc. 25; see also Doc. 29-3, pp. 4–5.) Accordingly, the Court will merely direct the Commissioner to pay to Plaintiff’s counsel the requested attorney’s fees. In the absence of any other clear error, the balance of the R&R is due to be adopted. Accordingly, it is ORDERED AND ADJUDGED as follows:

1. U.S. Magistrate Judge Monte C. Richardson’s Report and Recommendation (Doc. 30) is ADOPTED IN PART and REJECTED IN PART: a. The recommendation that the Clerk of the Court be directed to enter judgment accordingly is REJECTED. b. In all other respects, the R&R is ADOPTED, CONFIRMED, and

made a part of this Order. 2. Plaintiff Felicita Burgos’s Motion for Attorney’s Fees Pursuant to the Social Security Act Section 206(b)(1) and U.S.C. § 406(b)(1) (Doc. 29) is GRANTED. a. The Commissioner is DIRECTED to pay to Plaintiff’s counsel the

sum of $19,721.12 for § 406(b) fees out of Plaintiff’s past-due benefits. b. Plaintiff’s counsel is DIRECTED to refund the EAJA award of $3,703.34 to Plaintiff upon receipt of the § 406(b) fees. DONE AND ORDERED in Chambers in Orlando, Florida, on December 6, 2019. Sr, ROY B. DALTON JR: United States District Judge

Copies to: Counsel of Record

-3-