Fierro v. Social Security Administration

Filing 26

ORDER by Magistrate Judge Stephan M. Vidmar GRANTING 24 Plaintiff's Motion for Attorney Fees under EAJA (am)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO JOSIAH RICHARD FIERRO, Plaintiff, v. No. 16-cv-0193 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 Pursuant to the Equal Access to Justice Act, with Memorandum in Support [Doc. 24], filed on February 20, 2017. Plaintiff requests attorney fees in the amount of $4,992. In her response [Doc. 25], the Commissioner does not object to Plaintiff’s request for attorney fees. 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 Pursuant to the Equal Access to Justice Act [Doc. 24] is GRANTED, and Plaintiff Josiah Richard Fierro is authorized to receive $4,992 for payment to his attorney for 1 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 § 205(g) of the Social Security Act, 42 U.S.C. § 405(g). 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 2

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