Encinas v. Social Security Administration

Filing 31

ORDER by Magistrate Judge Stephan M. Vidmar GRANTING 30 Plaintiff's Unopposed Motion for Attorney Fees Under EAJA (am)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO BERLINDA S. ENCINIAS, Plaintiff, v. No. 16-cv-0232 SMV NANCY A. BERRYHILL,1 Acting Commissioner of the Social Security, Defendant. ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY FEES UNDER EAJA THIS MATTER is before the Court on Plaintiff’s Unopposed Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act [Doc. 30], filed on April 4, 2017. Plaintiff requests attorney fees in the amount of $2,976, and her request is unopposed. Id. The Court, having considered the submissions of counsel, the record in this case, and the relevant law, and being otherwise fully advised in the premises, FINDS that the motion is well-taken and will be GRANTED. IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff’s Unopposed Motion for Award of Attorney Fees Pursuant to the Equal Access to Justice Act [Doc. 30] is GRANTED, and Plaintiff Berlinda S. Encinias is authorized to receive $2,976 for payment to her attorney for services before this Court, as permitted by the Equal Access to Justice 1 Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be substituted for Acting Commissioner Carolyn W. Colvin as the defendant in this suit. No further action needs to be taken to continue this suit by reason of the last sentence of section 205(g) of the Social Security Act, 42 U.S.C. § 405(g). Act, 28 U.S.C. § 2412, and in accordance with Manning v. Astrue, 510 F.3d 1246, 1255 (10th Cir. 2007). IT IS FURTHER ORDERED that if Plaintiff’s counsel is ultimately granted attorney fees pursuant to 42 U.S.C. § 406(b) of the Social Security Act, counsel shall refund the smaller award to Plaintiff pursuant to Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (“Congress harmonized fees payable by the Government under EAJA with fees payable under § 406(b) out of the claimant’s past-due Social Security benefits in this manner: Fee awards may be made under both prescriptions, but the claimant’s attorney must refun[d] to the claimant the amount of the smaller fee.”) (internal quotation marks omitted). IT IS SO ORDERED. ______________________________ STEPHAN M. VIDMAR United States Magistrate Judge Presiding by Consent 2

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