Lewis v. Social Security Administration

Filing 27

ORDER by District Judge James H. Payne: affirming and adopting 26 Report and Recommendation; granting 24 Supplemental Motion for Attorney Fees; finding as moot 21 Motion for Attorney Fees (cjt, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF OKLAHOMA KATHY L. LEWIS, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant. ) ) ) ) ) ) ) ) ) ) ) Case No. 15-CV-84-JHP-SPS ORDER AFFIRMING AND ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE On March 21, 2017, 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 Application (Doc. No. 21) be deemed moot and that Plaintiff’s Supplemental Application (Doc. No. 24) 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(a). 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 March 21, 2017, 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 28 U.S.C. § 2412 (Doc. No. 21) is deemed MOOT and Plaintiff’s Supplemental Application for Award of Attorney’s Fees Pursuant to the Equal Access to Justice Act 28 U.S.C. § 2412 (Doc. No. 24) is GRANTED. Accordingly, the Government is ordered to pay Plaintiff’s attorney’s fees in the amount of $4,943.40 and costs in the amount of $400.00. 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 11th day of April, 2017.     2  

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