REPORT AND RECOMMENDATION

CHARLES J. KAHN, Jr., Magistrate Judge.

This matter is before the court on plaintiff's counsel's Petition for Authorization of an Attorney Fee Pursuant to the Social Security Act. (Doc. 23). The Commissioner does not object to the reasonableness of the fee requested by plaintiff's counsel and agrees plaintiff's attorney should be awarded attorney's fees under 42 U.S.C. § 406(b) in the amount of $11,830.50 for services performed on behalf of plaintiff. (Doc. 23, p. 4). Having undertaken an independent determination of the reasonableness of plaintiff's counsel's petition pursuant to 42 U.S.C. § 406(b) and Gisbrecht v. Barnhart, 535 U.S. 789, 807-08, 122 S.Ct. 1817, 152 L. Ed. 2d 996 (2002), the undersigned finds the requested fee is reasonable and not a windfall and thus should be awarded. The court notes, however, that in order to prevent double recovery of attorney's fees, an attorney who is awarded fees under both § 406(b) and the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412, must refund to the client the lesser award. Gisbrecht, 535 U.S. at 796. Previously, plaintiff's counsel was awarded fees under the EAJA in the amount of $6,244.01, which is less than the amount requested in the instant petition. (Doc. 22). Plaintiff's counsel shall refund the EAJA award to the plaintiff upon receipt of the fees awarded under § 406(b).

Accordingly, it is respectfully RECOMMENDED:

1. That the petition for attorney's fees (doc. 23) be GRANTED in the amount of $11,830.50 and that the Commissioner be ordered to pay that amount to plaintiff's counsel from the plaintiff's past-due benefits.

2. That plaintiff's counsel be directed to refund to the plaintiff $6,244.01, which is equal to the amount of the EAJA fees previously awarded in this case.

NOTICE TO THE PARTIES

Objections to these proposed findings and recommendations may be filed within fourteen (14) days after being served a copy thereof. Any different deadline that may appear on the electronic docket is for the court's internal use only, and does not control. A copy of objections shall be served upon the magistrate judge and all other parties. A party failing to object to a magistrate judge's findings or recommendations contained in a report and recommendation in accordance with the provisions of 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions. See U.S.Ct. of App. 11th Cir. Rule 3-1; 28 U.S.C. § 636.