Simmons v. Social Security Administration

Filing 31

ORDER by District Judge James H. Payne: affirming and adopting 29 Report and Recommendation; granting 25 Motion for Attorney Fees; granting 30 Supplemental Motion for Attorney Fees (cjt, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF OKLAHOMA
DOUGLAS D. SIMMONS,
Plaintiff,
v.
NANCY A. BERRYHILL,
Acting Commissioner of
Social Security Administration,
Defendant.

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Case No. 14-CV-328-JHP-SPS

ORDER AFFIRMING AND ADOPTING THE REPORT AND
RECOMMENDATION OF THE UNITED STATES
MAGISTRATE JUDGE
AND GRANTING SUPPLEMENTAL REQUEST FOR FEES
On June 1, 2016, the United States Magistrate Judge entered a Report and
Recommendation in regard to Plaintiff’s request for an award of attorney fees under the Equal
Access to Justice Act, 28 U.S.C. § 2412(d). The Magistrate Judge recommended that Plaintiff’s
Motion be granted. No party has filed any objection to the Magistrate Judge’s Report and
Recommendation within the time prescribed by law. 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b).
On June 6, 2016, Plaintiff submitted a Supplemental Application for Award of Attorney’s Fees
(Doc. No. 30), requesting an additional $741.00 representing 3.9 hours of attorney time incurred
in preparing a reply to Defendant’s EAJA Response. The Commissioner did not object to
Plaintiff’s supplemental request for fees.
This Court finds that the Report and Recommendation of the Magistrate Judge is
supported by the record. Therefore, upon full consideration of the entire record and the issues
presented herein, the Court finds and orders that the Report and Recommendation entered by the

United States Magistrate Judge on June 1, 2016, be AFFIRMED and ADOPTED by this Court
as its Findings and Order.
It is ORDERED that Plaintiff’s Application for Award of Attorney’s Fees Pursuant to
the Equal Access to Justice Act (Doc. No. 25) is GRANTED. It is further ORDERED that
Plaintiff’s Supplemental Application for Award of Attorney’s Fees Pursuant to the Equal Access
to Justice Act (Doc. No. 30) is GRANTED. Accordingly, the Government is ordered to pay
Plaintiff’s attorney’s fees in the total amount of $8,247.00.1
It is further ORDERED that the award in this case is to be made payable to Plaintiff, not
Plaintiff’s counsel, or jointly to Plaintiff and Plaintiff’s counsel, as 28 U.S.C. § 2412(a)(1) and
(d)(1)(A) provide for an award of costs and attorney’s fees to a “prevailing party.” Further, if
Plaintiff’s counsel is ultimately granted attorney fees pursuant to 42 U.S.C. §406(b)(1), she shall
refund the smaller award to the plaintiff pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th
Cir. 1986).
IT IS SO ORDERED this 6th day of March, 2017.

1

This total reflects a correction to an error in hourly billing rate on an entry from March 17, 2016, which Plaintiff
previously overlooked. (See Doc. No. 30, at 7 n.1).

2