Lochtefeld v. Social Security Administration

Filing 24

ORDER by Magistrate Judge Stephan M. Vidmar GRANTING 23 Plaintiff's Motion for Attorney Fees under EAJA (am)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DIANE MARIE LOCHTEFELD,
Plaintiff,
v.

No. 17-cv-0653 SMV

NANCY A. BERRYHILL,1
Acting Commissioner of Social Security Administration,
Defendant
ORDER GRANTING PLAINTIFF’S MOTION
FOR ATTORNEY FEES UNDER EAJA
THIS MATTER is before the Court on Plaintiff's Motion for Attorney Fees under the
Equal Access to Justice Act [Doc. 23], filed on December 19, 2017. Plaintiff requests attorney
fees in the amount of $9,388.40 and costs in the amount of $400. Defendant filed no response,
and the time for doing so has passed. Her failure to timely respond in opposition constitutes
consent to grant the motion. See D.N.M.LR-Civ. 7.1(b). 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
Motion for Attorney Fees under the Equal Access to Justice Act [Doc. 23] is GRANTED, and
Plaintiff Diane Marie Lochtefeld is authorized to receive $9,788.40 for payment to her attorney

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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).

for costs and services before this Court, as permitted by the Equal Access to Justice 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

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