Mathis v. Commissioner of Social Security

Filing 30

ORDER APPROVING AND ADOPTING REPORT AND RECOMMENDATION 28 , 21 ; the motion for attorney fees is granted in part and denied in part. An award of $2,678.75 in attorney fees is granted in favor of Plaintiff and against Defendant. The award shall be added to the Judgment in favor of Plaintiff already entered in the case and shall be paid directly to Plaintiff ; signed by Judge Robert J. Jonker (Judge Robert J. Jonker, mil)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

ROBERT A. MATHIS,
Plaintiff,
CASE NO. 1:13-CV-256
v.
HON. ROBERT J. JONKER
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
__________________________________/
ORDER APPROVING AND ADOPTING
REPORT AND RECOMMENDATION
The Court has reviewed Magistrate Judge Carmody’s Report and Recommendation in this
matter (docket # 28) and Plaintiff’s Objections to the Magistrate Judge’s Report and
Recommendation (docket # 29). Under the Federal Rules of Civil Procedure, where, as here, a party
has objected to portions of a Report and Recommendation, “[t]he district judge . . . has a duty to
reject the magistrate judge’s recommendation unless, on de novo reconsideration, he or she finds it
justified.” 12 WRIGHT , MILLER, & MARCUS, FEDERAL PRACTICE AND PROCEDURE § 3070.2, at 381
(2d ed. 1997). Specifically, the Rules provide that:
The district judge to whom the case is assigned shall make a de novo
determination upon the record, or after additional evidence, of any
portion of the magistrate judge's disposition to which specific written
objection has been made in accordance with this rule. The district
judge may accept, reject, or modify the recommended decision,
receive further evidence, or recommit the matter to the magistrate
judge with instructions.

FED R. CIV . P. 72(b). De novo review in these circumstances requires at least a review of the
evidence before the Magistrate Judge. Hill v. Duriron Co., 656 F.2d 1208, 1215 (6th Cir. 1981).
The Court has reviewed de novo the claims and evidence presented to the Magistrate Judge;
the Report and Recommendation itself; and Plaintiff’s objections. The Court finds the Magistrate
Judge’s Report and Recommendation (docket # 28) is factually sound and legally correct.
The Magistrate Judge recommends entry of an order granting Plaintiff’s motion for attorney
fees, but only in the amount of $2,678.75, rather than the $3,901.57 counsel requests. The
difference is the hourly rate claimed. Plaintiff’s Objections reiterate and supplement arguments
made in her motion papers. The Report and Recommendation already carefully, thoroughly, and
accurately addresses those arguments. Plaintiff also says that the Magistrate Judge overlooked
affidavits Plaintiff filed in support of her position. The affidavits do not change the Court’s view
that there is not sufficient basis to override the statutory limit of $125 per hour in this case. The
Magistrate Judge properly concluded that a reduced fee award paid directly to the Plaintiff is
appropriate.
ACCORDINGLY, IT IS ORDERED that the Report and Recommendation of the
Magistrate Judge (docket # 28) is approved and adopted as the opinion of the Court.
IT IS FURTHER ORDERED that the motion for attorney fees is GRANTED IN PART
AND DENIED IN PART (docket # 21). An award of $2,678.75 in attorney fees is granted in favor
of Plaintiff and against Defendant. The award shall be added to the Judgment in favor of Plaintiff
already entered in the case and shall be paid directly to Plaintiff.
/s/Robert J. Jonker
ROBERT J. JONKER
UNITED STATES DISTRICT JUDGE
Dated: August 21, 2014

2