McDaniels v. Social Security Administration

Filing 34

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

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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

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