Lobato v. Social Security Administration

Filing 32

ORDER by Magistrate Judge Kevin R. Sweazea granting 30 Supplemental Motion for Attorney Fees. (sls)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
LESLEE MARIE LOBATO
Plaintiff,
v.

No. 17-cv-907-KRS

NANCY A. BERRYHILL,
Acting Commissioner of the
Social Security Administration,
Defendant.

ORDER FOR THE AWARD OF ATTORNEY FEES
PURSUANT TO THE EQUAL ACCESS TO JUSTICE ACT
THIS MATTER comes before the Court upon Plaintiff’s Opposed Motion for Attorney
Fees Pursuant to the Equal Access to Justice Act (hereinafter “Opposed Motion”), (Doc. 24),
filed February 13, 2019, and Supplemental Motion in Support of Attorney Fees Pursuant to the
Equal Access to Justice Act (hereinafter “Supplemental Motion”), (Doc. 30), filed April 10,
2019. The Court, having granted in part Plaintiff’s Opposed Motion in an order entered April 4,
2019, (Doc. 29), and having considered Defendant’s Response to Plaintiff’s Supplemental
Motion, (Doc. 31), wherein the Commissioner states that she takes no position on the motion,
FINDS that Plaintiff’s Supplemental Motion is well-taken and should be GRANTED.
IT IS, THEREFORE, ORDERED that Plaintiff’s Supplemental Motion is GRANTED
and Plaintiff is awarded $ 6,809.10 in attorney fees pursuant to the Equal Access to Justice Act
(“EAJA”), 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 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