Hundley v. Commissioner of Social Security

Filing 23

ORDER ON MOTION FOR ATTORNEY'S FEES granting 22 Motion for Attorney Fees. ORDERED that 1. Plaintiffs motion for attorneys fees is GRANTED; 2. Plaintiff is awarded a fee in the amount of $6,338.95; and 3. If plaintiff does not owe a debt subject to offset under the Treasury Offset Program, the funds shall be made payable to plaintiffs attorney of record. IT IS SO ORDERED. Signed by Judge David N. Hurd on 8/1/2022. (khr)

Case 5:21-cv-00437-DNH-ATB Document 23 Filed 08/01/22 Page 1 of 3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------LORRAINE H.,
Plaintiff,
-v-

5:21-CV-437

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
-------------------------------APPEARANCES:

OF COUNSEL:

OLINSKY LAW GROUP
Attorneys for Plaintiff
250 South Clinton Street, Suite 210
Syracuse, NY 13202

HOWARD D. OLINSKY, ESQ.

SOCIAL SECURITY
ADMINISTRATION
Attorneys for Defendant
J.F.K. Federal Building, Room 625
15 New Sudbury Street
Boston, MA 02203

RONALD W. MAKAWA, ESQ.
MICHAEL L. HENRY, ESQ.
Ass’t United States Attorneys

DAVID N. HURD
United States District Judge

Case 5:21-cv-00437-DNH-ATB Document 23 Filed 08/01/22 Page 2 of 3

ORDER ON MOTION FOR ATTORNEY’S FEES
On April 16, 2021, plaintiff Lorraine H. 1 (“plaintiff”) filed this action
seeking review of a final decision by defendant Commissioner of Social
Security (“Commissioner”) denying her application for Disability Insurance
Benefits (“DIB”) under the Social Security Act (the “Act”). Dkt. No. 1.
After plaintiff filed her opening brief, Dkt. No. 18, the Commissioner
agreed to remand the matter for further administrative proceedings pursuant
to Sentence Four of 42 U.S.C. § 405(g), Dkt. No. 19. U.S. Magistrate Judge
Andrew T. Baxter “so ordered” the stipulation on April 14, 2022, Dkt. No. 20,
and a judgment in plaintiff’s favor was entered later that day, Dkt. No. 21.
On July 7, 2022, plaintiff moved for an award of attorney’s fees as a
“prevailing party” under the Equal Access to Justice Act (“EAJA”), which
shifts litigation fees to a government defendant when certain conditions are
met. Dkt. No. 22. Although the deadline in which to do so expired on July
28, 2022, the Commissioner has failed to oppose or otherwise respond to
plaintiff’s request for fees. See id.
Upon review of the submissions, and in the absence of an opposition or
other guidance from the Commissioner, plaintiff’s fee application appears to

1 In accordance with a May 1, 2018 memorandum issued by the Judicial Conference’s

Committee on Court Administration and Case Management and adopted as local practice in this
District, only claimant’s first name and last initial will be mentioned in this opinion.
-2-

Case 5:21-cv-00437-DNH-ATB Document 23 Filed 08/01/22 Page 3 of 3

be reasonable and appropriate when measured against the governing
law. Accordingly, plaintiff’s motion will be granted. Shalala v. Schaefer, 509
U.S. 292, 301 (1993) (explaining that only a sentence four remand amounts to
the kind of “final judgment” that permits the shifting of fees under the
EAJA).
Therefore, it is
ORDERED that
1. Plaintiff’s motion for attorney’s fees is GRANTED;
2. Plaintiff is awarded a fee in the amount of $6,338.95; and
3. If plaintiff does not owe a debt subject to offset under the Treasury
Offset Program, the funds shall be made payable to plaintiff’s attorney of
record.
IT IS SO ORDERED.
Dated: August 1, 2022
Utica, New York.

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