Pyatt v. Commissioner of Social Security

Filing 34

REPORT AND RECOMMENDATION re 32 MOTION for Attorney Fees filed by Judy Pyatt. Objections to R&R due by 4/25/2014. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/8/2014. (sln1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JUDY PYATT,
Plaintiff,
Civil Action 2:09-cv-00475
Judge Algenon L. Marbley
Magistrate Judge Elizabeth P. Deavers

v.

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

REPORT AND RECOMMENDATION
This matter is before the Magistrate Judge for a Report and Recommendation on
Plaintiff’s unopposed Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b)(1) (ECF No. 32)
and Defendant’s Response (ECF No. 33). For the reasons that follow, the Undersigned
RECOMMENDS that Plaintiff’s Motion be GRANTED.
On January 12, 2011, the Court ordered that Plaintiff’s counsel be awarded a reasonable
attorney’s fee of $2,156.25 pursuant to the Equal Access to Justice Act (“EAJA”). (ECF No.
31.) On May 7, 2013, Plaintiff’s counsel filed the instant Motion, seeking additional fees of
$5,162.50 under the Social Security Act, 42 U.S.C. § 406(b)(1). Defendant does not oppose the
additional award of fees and agrees that the hourly rate is reasonable. Defendant does, however,
emphasize that Plaintiff cannot recover twice for the same work.
The Undersigned concludes that Plaintiff’s counsel is entitled to fees pursuant to the
Social Security Act. Plaintiff’s counsel cannot, however, recover twice for the same work.
“‘[A]ny funds awarded pursuant to the EAJA serve as a reimbursement to the claimant for fees

paid out of his or her disability award to his or her counsel.’” Jankovich v. Bowen, 868 F.2d 867,
871 (6th Cir. 1989) (quoting Meyers v. Heckler, 625 F.Supp. 228, 231 (S.D. Ohio 1985)).
Applying the foregoing authority, the Undersigned RECOMMENDS that the Court award
Plaintiff’s counsel fees in the amount of $3,006.25. This amount represents an award of
$5,162.50 under the Social Security Act, offset by the $2,156.25 Plaintiff’s counsel received
under the EAJA.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).
Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to
magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
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specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).

Date: April 8, 2014

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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