MCCURRY v. Commissioner of Social Security Administration

Filing 26

ORDER Adopting 25 Report and Recommendation to Adopt Petitioner's 20 Application for Section 406(b) Attorney Fees. Signed by District Judge Denise Page Hood. (JOwe)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
Geraldine McCurry,
Plaintiff,

Case Number 14-12114
Hon. Denise Page Hood

v.
Carolyn W. Colvin,
Acting Commissioner
of Social Security,
Defendant.
________________________________/
ORDER ADOPTING REPORT AND RECOMMENDATION
TO GRANT PETITIONER’S APPLICATION FOR
SECTION 406(b) ATTORNEY FEES (DOC. 25)
Petitioner, Thomas J. Bertino, counsel for Plaintiff, seeks attorney fees
pursuant to 42 U.S.C. § 406(b) of the Social Security Act. Petitioner requests
$8,798.13, which is the full amount of potential attorney fees the Social Security
Administration withheld from Geraldine McCurry’s benefits award. McCurry,
through a stipulation and order, has received $4,332.79 in attorney fees under 28
U.S.C. § 2412, the Equal Access to the Justice Act (“EAJA”). Therefore, if
Petitioner’s motion is granted, he must repay McCurry the $4,332.79 she received
under the EAJA. The Commissioner does not oppose the amount Petitioner seeks.

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The Magistrate Judge recommends that the Court grant Petitioner’s motion,
noting that Petitioner demonstrated that the amount he seeks is reasonable. (Doc.
25 at 2). The Magistrate Judge also states that Petitioner’s request for attorney fees
under 42 U.S.C. §§ 406(a) and 406(b) is not completely restricted by the 25% cap
under §406(b)(1)(A). Each tribunal may award attorney fees to an attorney for the
work that the attorney has done within that tribunal. Accordingly, the Petitioner
may seek additional attorney fees, subject to the restrictions 42 U.S.C. §
406(a)(2)(A), for work done before the Commissioner without regard to the cap.
(Doc. 25 at 4).
Once a report and recommendation has been issued, a party has fourteen
days to file written objections to the Magistrate Judge’s proposed findings and
recommendations. 28 U.S.C. § 636. A district court is not required to review any
portion of a report and recommendation to which no objection was made.
Hickey-Niezgoda v. Wells Fargo Home Mortgage, No. 11-10538, 2012 WL
1079573, at *1 (E.D. Mich. Mar. 30, 2012) citing Thomas v. Arn, 474 U.S. 140,
149 (1985).
Neither party filed any written objections, and the time period for filing
objections has expired. After reviewing the motion for summary judgment, the
Report and Recommendation, and the remainder of the record, the Court agrees
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with the Magistrate Judge’s recommendations. She engaged in a thorough analysis
of the issues presented and provided reasoned explanations for her conclusions.
Accordingly,
IT IS ORDERED that the Magistrate Judge’s Report and Recommendation
(Doc. No. 25) is ACCEPTED and ADOPTED.
IT IS FURTHER ORDERED that the Petition for Attorney Fees (Doc. No.
20) is GRANTED. Petitioner is awarded $8,798.13 in attorney’s fees. Petitioner
must refund Plaintiff $4,332.79, the amount previously awarded under the EAJA.
SO ORDERED.

S/Denise Page Hood
Denise Page Hood
Chief Judge, United States District Court
Dated: September 29, 2016
I hereby certify that a copy of the foregoing document was served upon counsel of
record on September 29, 2016, by electronic and/or ordinary mail.
S/LaShawn R. Saulsberry
Case Manager

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