McDaniels v. Social Security Administration

Filing 34

ORDER by Magistrate Judge Kevin R. Sweazea granting 32 Motion for Attorney Fees (cbf)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JINA YVONNE MCDANIEL,
Plaintiff,
vs.

Civil No.

16-496 KRS

NANCY BERRYHILL , Acting
Commissioner of the Social Security
Administration,
Defendant.
ORDER FOR THE AWARD OF ATTORNEY FEES
PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT, 28 U.S.C. § 2412(d)
THIS MATTER is before the Court on Plaintiff’s Motion for Attorney Fees Pursuant to
the Equal Access to Justice Act, with Memorandum in Support [Doc. 32], filed on August 31,
2017. Defendant does not object to the amount of EAJA fees requested. [Doc. 33] The Court
being otherwise fully advised in the premises, FINDS that the motion is well-taken and will be
GRANTED.
IT IS THEREFORE ORDERED that the motion is GRANTED, and Plaintiff is
awarded $6,523.30 in attorney fees pursuant to the Equal Access to Justice Act, 28 U.S.C. §
2412(d). See Astrue v. Ratliff, 560 U.S. 586, 591-93 (2010) (EAJA fees are paid to the
prevailing party, not the attorney).
Payment of this amount shall constitute a complete release from and bar to any and all
claims Plaintiff may have relating to EAJA fees in connection with this action. The parties
further agree that the EAJA award is without prejudice to Plaintiff’s attorney’s right to seek
attorney fees pursuant to Social Security Act § 206(b), 42 U.S.C. § 406(b), subject to the offset
provisions of the EAJA. See 28 U.S.C. § 2412(c)(1) (2006).

IT IS FURTHER ORDERED that, if Plaintiff’s counsel receives attorney fees under
both the EAJA and 42 U.S.C. § 406(b) of the Social Security Act, Plaintiff’s counsel shall refund
the smaller award to Plaintiff pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir.
1986).

KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE