McKenzie v. Astrue

Filing 27

ORDER ADOPTING REPORT AND RECOMMENDATION: It is Ordered that Magistrate Judge Rateau's Report and Recommendation (Doc. 25 ) is ACCEPTED and ADOPTED as the findings of fact and conclusions of law by this Court, with the exception that Plaintiff is awarded attorney fees in the amount of $5,953.58 pursuant to 28 U.S.C. 2412(d). Signed by Senior Judge Frank R Zapata on 12/19/2014. (MFR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Alan McKenzie,
Plaintiff,

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v.

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Carolyn W. Colvin, Commissioner of
Social Security,

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Defendant.
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No. CV 11-784-TUC-FRZ (JR)
ORDER

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Plaintiff Michael Alan McKenzie filed this action pursuant to 42 U.S.C. § 405(g) of the

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Social Security Act for judicial review of the final decision of the Commissioner of the Social

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Security Administration, denying his application for Social Security disability insurance

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benefits.

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This matter was referred to the United States Magistrate Judge for all pretrial

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proceedings and report and recommendation in accordance with the provisions of 28 U.S.C. §

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636(b)(1) and LRCiv 72.1 and LRCiv 72.2, Rules of Practice of the United States District Court

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for the District of Arizona.

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On July 25, 2013, Magistrate Judge Jacqueline M. Rateau issued her Report and

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Recommendation, recommending that the District Court, after its independent review of the

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record herein, remand this case to the Administrative Law Judge for further proceedings.

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This Court, after consideration of all matters presented and an independent review of the

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record herein, and there being no objections, accepted and adopted the Report and

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Recommendation as the findings of fact and conclusions of law of this Court, and further

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ordered the Plaintiff’s claim for benefits remanded to the Commissioner of the Social Security

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Administration for further proceedings in accordance with the Report and Recommendation.

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(Doc. 19) Judgment was entered accordingly. (Doc. 20)

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Before the Court for consideration is Plaintiff’s Motion for Attorney Fees Under the
Equal Access to Justice Act. (Doc. 21)
On January 30, 2014, Magistrate Judge Jacqueline M. Rateau issued her Report and
Recommendation, recommending that the District Court, after its independent review of the
record herein, issue an order awarding Plaintiff attorney fees in the requested amount of
$4,796.97, pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412.

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Plaintiff filed an objection to the Report and Recommendation (Doc. 26), submitting that

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he is eligible for and entitled to attorney fees under the EAJA in the amount “of $5,953.58

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($4,796.97 (initial request) + $1,156.61 (supplemental request)) reasonably incurred in this civil

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action. 28 U.S.C. § 2412(d),” and that “[t]he Court should reject the Magistrate Judge’s EAJA

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Report insofar as it awarded Plaintiff $4,796.97 instead of $5,953.58 in attorney fees.”

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Defendant filed no objection or response thereto.

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The Court finds, after consideration of all matters presented and an independent review

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of the motion, response in opposition, and reply thereto, the Report and Recommendation and

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Plaintiff’s objection, that the findings of the Magistrate Judge as set forth in the Report and

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Recommendation, shall be accepted and adopted, in part, as the findings of fact and conclusions

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of law of this Court, as follows:

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IT IS HEREBY ORDERED that Magistrate Judge Rateau’s Report and

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Recommendation (Doc. 25) is ACCEPTED and ADOPTED as the findings of fact and

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conclusions of law by this Court, with the exception that Plaintiff is awarded attorney fees in

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the amount of $5,953.58 pursuant to 28 U.S.C. 2412(d).

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DATED this 19th day of December, 2014.

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