Guimarra v. Commissioner of Social Security
Filing
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ORDER GRANTING 19 Motion for Attorney Fees signed by Magistrate Judge Stanley A. Boone on 10/30/2015. (Hernandez, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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JOHN GIUMARRA,
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Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Case No. 1:13-cv-01690-SAB
ORDER GRANTING PETITIONER’S MOTION
FOR ATTORNEY FEES PURSUANT TO 42
U.S.C. § 406(b)
(ECF Nos. 19, 20)
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Defendant.
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Petitioner Roger D. Drake (“Counsel”), attorney for Plaintiff John Giumarra (“Plaintiff”),
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filed the instant motion for attorney fees on October 13, 2015. Counsel requests fees in the
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amount of $5,460.00 pursuant to 42 U.S.C. § 406(b)(1). Plaintiff has not objected to the request.
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On October 20, 2015, Defendant Social Security Commissioner, as a de facto trustee for Plaintiff,
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filed a response to Petitioner’s motion providing an analysis of the fee request.
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I.
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BACKGROUND
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Plaintiff filed the instant complaint challenging the denial of social security benefits on
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October 19, 2013. (ECF No. 1.) On June 26, 2014 the parties filed a stipulation for voluntary
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remand pursuant to sentence four of 42 U.S.C. 405(g). (ECF No. 14.) The Court entered
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judgment in the Commissioner's favor on June 30, 2014. (ECF No. 16.)
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On August 28, 2014, the parties filed a stipulation for an award of attorney fees pursuant
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to the Equal Access to Justice Act (“EAJA”). On January 18, 2015, an order issued awarding
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Plaintiff attorney fees of $1,900.00. (ECF No. 18.)
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On remand, the ALJ found that Plaintiff was disabled as of October 1, 2011, and past
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benefits were awarded in the amount of 45,840.00. (ECF No. 19-1 at 4, 6.) The Commissioner
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withheld $11,460.00 from the past-due benefit for attorney fees. This amount equals 25 percent
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of the retroactive benefit award. (Id. at 6.) Petitioner’s firm was paid $6,000.00 of this award for
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representation of Plaintiff at the administrative level, leaving $5,460.00 for attorney fees for
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representation in the court proceedings. (Id. at 6-7.)
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In the instant motion, Petitioner seeks $5,460.00 for 11.4 hours spent working on
Plaintiff’s case. (ECF No. 19-3.)
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II.
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LEGAL STANDARD
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In relevant part, 42 U.S.C. § 406(b)(1)(A) provides that when a federal court “renders a
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judgment favorable to a claimant . . . who was represented before the court by an attorney,” the
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court may allow reasonable attorney fees “not in excess of 25 percent of the total of the past-due
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benefits to which the claimant is entitled by reason of such judgment.” The payment of such
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award comes directly from the claimant’s benefits. 42 U.S.C. § 406(b)(1)(A).
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The Supreme Court has explained that a district court reviews a petition for section 406(b)
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fees “as an independent check” to assure that the contingency fee agreements between the
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claimant and the attorney will “yield reasonable results in particular cases.”
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Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful
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attorney-client fee agreements,” and is to look first at the contingent-fee agreement, and then test
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it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009). Agreements
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seeking fees in excess of twenty-five percent of the past-due benefits awarded are not
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enforceable. Crawford, 586 F.3d at 1148. The attorney has the burden of demonstrating that the
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fees requested are reasonable. Gisbrecht, 535 U.S. at 808; Crawford, 586 F.3d at 1148.
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Gisbrecht v.
In determining the reasonableness of an award, the district court should consider the
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character of the representation and the results achieved. Gisbrecht, 535 U.S. at 800. Ultimately,
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an award of section 406(b) fees is offset by an award of attorney fees granted under the EAJA.
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28 U.S.C. § 2412. Gisbrecht, 535 U.S. at 796.
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The Ninth Circuit has identified several factors that a district court can examine under
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Gisbrecht in determining whether the fee was reasonable. In determining whether counsel met
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his burden to demonstrate that the requested fees are reasonable, the court may consider (1) the
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standard of performance of the attorney in representing the claimant; (2) whether the attorney
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exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of
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past-due benefits; and (3) whether the requested fees are excessively large in relation to the
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benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586
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F.3d at 1151.
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III.
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DISCUSSION
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The Court has conducted an independent check to insure the reasonableness of the
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requested fees in relation to this action. Gisbrecht, 122 S.Ct. at 1828. Here, the fee agreement
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between Plaintiff and Petitioner provides for a fee consisting of “25% of the backpay awarded
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upon reversal of any unfavorable ALJ decision for work before” the Social Security
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Administration or the Court. (Social Security Representation Agreement, attached to Motion,
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ECF No. 19-2.) Plaintiff has been awarded benefits from March 2012 through July 2015 in the
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amount of $45,840.00. (ECF No. 19-1 at 6.) In determining the reasonableness of the fees
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requested, the Court is to apply the test mandated by Gisbrecht.
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A.
Reasonableness of Fee Request Under Gisbrecht
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There is no indication that a reduction of fees is warranted for substandard performance.
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Counsel is an experienced, competent attorney who secured a successful result for Plaintiff early
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in the litigation. Plaintiff agreed to a 25 percent fee at the outset of the representation and
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Petitioner is seeking $5,460.00. Petitioner has previously been paid $6,000.00 for representing
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Plaintiff before the Social Security Administration. The total fee paid to Petitioner ($6,000.00
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plus $5,460.00 which equals $11,460.00) would represent 25 percent of the past due award.
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The $11,460.00 fee is not excessively large in relation to the past-due award of
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$45,840.00. In making this determination, the Court recognizes the contingent nature of this case
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and Counsel’s assumption of the risk of going uncompensated. Hearn v. Barnhart, 262 F.Supp.2d
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1033, 1037 (N.D. Cal. 2003).
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B.
LodeStar Cross Check for Reasonableness
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In order to determine whether the fee requested in this action is reasonable, the Court shall
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also consider the lode star calculation. Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009)
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(the district court can consider the lodestar calculation, but only as an aid in assessing the
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reasonableness of the fee). The Ninth Circuit utilizes the “lodestar” approach for assessing
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reasonable attorneys’ fees, where the number of hours reasonably expended is multiplied by a
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reasonable hourly rate. Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013);
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Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008).
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1.
Reasonable Hours
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Initially, the Court shall review the billing records to determine if the time that Petitioner
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billed in this action is reasonable. Although Grisbrecht did not specifically address that the hours
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billed must be reasonably spent on the action, any other interpretation would undermine the
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reasonableness check. See Statler v. Astrue, No. CV 05-01213 AN, 2009 WL 195955, at *5
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(C.D. Cal. Jan. 26, 2009) (considering reasonableness of hours billed in determining similar fee
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request).
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In reviewing the itemized record of the time spent working on this action, the Court finds
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that several of the entries record excessive amounts of time for the service provided. On October
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19, 2013, Petitioner spent .4 hours or 18 minutes preparing the civil cover sheet which is a one
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page check box form which generally just required filing in the names of the parties and
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Petitioner’s contact information. (ECF No. 1-1.) The Court finds that .1 hours would be a
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reasonable amount of time to have completed this generic form that is filed in all cases.
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On December 6, 2013, Petitioner recorded .4 hours to prepare and file the consent form,
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which similarly is a single page generic form which is filed in all cases and to which counsel
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affixed his signature.
(ECF No. 4-2; see also Consent to Proceed Before a United States
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Magistrate Judge filed in Gallardo v. Michael J. Astrue, No. 1:12-cv-01706-SKO (E.D. Cal.
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December 19, 2012) (in which Petitioner filed an identical form).) The Court finds that .1 hours
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would be a reasonable amount of time to bill for this task.
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On December 17, 2013, Petitioner billed for .3 hours to prepare and file the proof of
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service. (ECF No. 1-1) However, this is another form document that would be filed in all Social
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Security cases and would only requiring minor edits to be filed herein. The Court finds that .1
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hours would be a reasonable amount of time to bill for the minor edits and filing of this
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document.
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On April 30, 2014, Petitioner recorded .9 hours for legal research regarding the duties of
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the ALJ to weigh medical opinions. (Id.) This appears an unreasonable amount of time for an
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attorney with twelve years of experience who has represented over 150 clients in Social Security
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appeals and nearly 1,000 administrative hearings to research an issue that is present in virtually
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every Social Security case. (ECF No. 19 at ¶¶ 6, 7.) The Court finds that .4 hours would be a
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reasonable amount of time to research any current changes in the standards regarding the ALJ’s
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duty to weigh medical opinions.
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On June 30, 2014, Petitioner billed for .3 hours to review the order remanding this action
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and judgment issued in this action. (ECF No. 1-1.) The remand order was simply the stipulation
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prepared by the parties which Petitioner had previously billed for reviewing on two separate
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occasions and the judgment is merely a one page standard order issued in all dismissals. The
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Court finds that .1 hours would be a reasonable amount of time to have reviewed both of these
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documents.
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The Court finds that making these deductions, Petitioner reasonably expended 9.9 hours
on this action.
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2.
Reasonable Hourly Rate
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When considering the total amount requested by Petitioner for representing Plaintiff in
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federal court, the fee request translates to approximately $551.00 per hour for the time Petitioner
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expended in this action. In Crawford the appellate court found that a fee of $875 and $902 per
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hour, for time of both attorneys and paralegals, was not excessive. Crawford, 586 F.3d at 1152
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(dissenting opinion).
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consideration that the case was taken on a contingency basis and Petitioner’s risk that he would
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not be compensated for the time expended in this action.
The Court finds that this is a reasonable hourly rate taking into
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C.
Conclusion
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The Court finds that the requested fees are reasonable when compared to the amount of
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work Counsel performed in representing Plaintiff in court. Petitioner’s representation of the
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claimant resulted in the action being remanded for further proceedings and benefits were
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awarded. Counsel also submitted a detailed billing statement which supports the request.
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Fee awards may be made under both section 406(b) and EAJA, but the claimant’s attorney
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must generally refund to the claimant the amount of the smaller fee. Gisbrecht, 535 U.S. at 796.
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Therefore, Petitioner shall refund to Plaintiff the amount of the EAJA fee that was previously
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awarded.
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VI.
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ORDER
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For the reasons stated above, the Court finds that the fees sought by Petitioner pursuant to
Section 406(b) are reasonable. Accordingly, IT IS HEREBY ORDERED that:
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1.
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Petitioner’s motion for an award of attorney fees pursuant to Section 406(b) in the
amount of $5,460.00 is GRANTED; and
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2.
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Petitioner’s award shall be offset by $1,900.00 for the EAJA fees previously
awarded pursuant to 28 U.S.C. § 2412(d)..
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IT IS SO ORDERED.
Dated:
October 30, 2015
UNITED STATES MAGISTRATE JUDGE
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