Key v. Social Security Administration

Filing 43

ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by District Judge Kea W. Riggs. The Magistrate Judge's 42 Proposed Findings and Recommended Disposition are ADOPTED. Plaintiff's 36 < I> Motion for an Order Authorizing Attorneys Fees Pursuant to 42 U.S.C. § 406(b) is GRANTED and the Court hereby authorizes an award of $20,371.25 in attorney's fees, to be paid to Plaintiff's counsel by the Commissi oner from the funds withheld for this purpose. Plaintiff's counsel shall refund to Plaintiff the fee of $6,306.30 awarded under the Equal Access to Justice Act, 28 U.S.C. § 2412, pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986). (ve)

Case 1:17-cv-00386-KWR-GBW Document 43 Filed 01/04/21 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO

JENNIFER NICOLE KEY,
Plaintiff,
vs.

No. 17-cv-00386-KWR-GBW

SOCIAL SECURITY ADMINISTRATION,
Andrew M. Saul, Commissioner of
Social Security Administration,1
Defendant.
ORDER ADOPTING MAGISTRATE JUDGE’S
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on Plaintiff’s Motion for an Order Authorizing
Attorney’s Fees Pursuant to 42 U.S.C. § 406(b) (doc. 36) and the Magistrate Judge’s Proposed
Findings and Recommended Disposition (“PFRD”) (doc. 42).
This case was referred to the Magistrate Judge to conduct hearings and perform legal
analysis pursuant to 28 U.S.C. § 636(b)(1)(B), (b)(3) and Va. Beach Fed. Sav. & Loan Ass’n v.
Wood, 901 F.2d 849 (10th Cir. 1990). See Doc. 40. The Magistrate Judge filed his PFRD
recommending that Plaintiff’s Motion be granted on December 4, 2020. Doc. 42. Neither Plaintiff
nor Defendant filed objections to the Magistrate Judge’s PFRD within fourteen days as required
by the statute. Appellate review of these issues is therefore waived. See United States v. One
Parcel of Real Prop., 73 F.3d 1057, 1059–60 (10th Cir. 1996). Failure to object to the PFRD also
waives the right to de novo review by the district court. See id. at 1060; Thomas v. Arn, 474 U.S.

1

Andrew M. Saul is the current Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of
Civil Procedure, Andrew M. Saul is automatically substituted for Acting Commissioner Nancy A. Berryhill as the
Defendant in this suit.

Case 1:17-cv-00386-KWR-GBW Document 43 Filed 01/04/21 Page 2 of 2

140, 149–150 (1985). Nevertheless, the Court decided sua sponte to conduct a de novo review of
the Magistrate Judge’s findings in this case. See One Parcel, 73 F.3d at 1061. The Court hereby
concurs with all of the factual and legal conclusions recited therein.
Wherefore, IT IS HEREBY ORDERED that the Magistrate Judge’s Proposed Findings
and Recommended Disposition (doc. 42) are ADOPTED. Plaintiff’s Motion for an Order
Authorizing Attorney’s Fees Pursuant to 42 U.S.C. § 406(b) (doc. 36) is GRANTED, and the
Court hereby authorizes an award of $20,371.25 in attorney’s fees, to be paid to Plaintiff’s counsel
by the Commissioner from the funds withheld for this purpose.
IT IS FURTHER ORDERED that Plaintiff’s counsel shall refund to Plaintiff the fee of
$6,306.30 awarded under the Equal Access to Justice Act, 28 U.S.C. § 2412, pursuant to Weakley
v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).

2