Borck v. Commissioner of Social Security

Filing 15

REPORT AND RECOMMENDATION signed by Magistrate Judge Stephanie K. Bowman on 12/12/16. It is RECOMMENDED THAT pursuant to the parties stipulation (Doc. 14 ), Plaintiff be awarded the total sum of $1,485.00 in attorneys fees and costs under the Equal Access to Justice Act (EAJA). Objections to R&R due by 12/30/2016. (eh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

ANKE BORCK,

Case No: 1:16-cv-326
Plaintiff,

v.

Dlott, J.
Bowman, M.J.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

REPORT AND RECOMMENDATION
Plaintiff Anke Borck filed this Social Security appeal to challenge the Defendant’s
non-disability finding. See 42 U.S.C. §405(g). On September 16, 2016, the Court
granted the parties’ joint motion to remand under sentence four of 42 U.S.C. §405(g).
(Doc. 12).
On December 8, 2016, the parties filed a Stipulation to an award of $1,485.00 in
attorney’s fees and costs pursuant to the Equal Access for Justice Act (“EAJA”). (Doc.
14). The parties’ stipulation suggests that, “if” counsel can verify that Plaintiff owes no
pre-existing debt to the United States that is subject to offset, then Defendant will direct
that the award be made payable to Plaintiff’s attorney pursuant to the attorney’s fee
assignment signed by Plaintiff.
A consensus of decisions within the Sixth Circuit hold that “[u]nder Ratliff, the
proper course is to award fees directly to Plaintiff and remain silent as to the direction of
those fees.” Oliver v. Com’r of Soc. Sec., 916 F.Supp.2d 834, 836-838 (S.D. Ohio
2013)(collecting cases and quoting Cornell v. Com’r of Soc. Sec., 2:11-cv-97, 2012 U.S.
Dist. LEXIS 6115, at *6-7 (S.D. Ohio May 2, 2012)); see also Cox v. Astrue, 917 F.

Supp.2d 659 (E.D. Ky. 2013)(holding that under Astrue v. Ratliff, 130 S. Ct. 2521
(2010), fees should be paid to litigants regardless of whether the Commissioner shows
that the plaintiff owes a federal debt or not). The fee award made by this Court neither
bars the United States from honoring a valid assignment, nor prevents it from disputing
it.
Accordingly, it is RECOMMENDED THAT pursuant to the parties’ stipulation
(Doc. 14), Plaintiff be awarded the total sum of $1,485.00 in attorney’s fees and costs
under the Equal Access to Justice Act (“EAJA”).

s/ Stephanie K. Bowman
Stephanie K. Bowman
United States Magistrate Judge

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
ANKE BORCK,

Case No: 1:16-cv-326
Plaintiff,

Dlott, J.
Bowman, M.J.

v.

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

NOTICE
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written
objections to this Report & Recommendation (“R&R”) within FOURTEEN (14) DAYS of
the filing date of this R&R. That period may be extended further by the Court on timely
motion by either side for an extension of time. All objections shall specify the portion(s)
of the R&R objected to, and shall be accompanied by a memorandum of law in support
of the objections. A party shall respond to an opponent’s objections within FOURTEEN
(14) DAYS after being served with a copy of those objections.

Failure to make

objections in accordance with this procedure may forfeit rights on appeal. See Thomas
v. Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

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