Opinion
CIV No. 12-0920 LH/SMV
02-25-2015
JAY THOMAS ENCISO, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.
ORDER ADOPTING MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on the Magistrate Judge's Proposed Findings and Recommended Disposition [Doc. 49] ("PF&RD"), issued on January 23, 2015. On reference by the Court, [Doc. 36], the Honorable Stephan M. Vidmar, United States Magistrate Judge, recommended granting Plaintiff's Motion for Attorney Fees Under Equal Access to Justice Act [Doc. 45]. No objections were filed, and the time for doing so has passed. Accordingly, the Court will adopt the PF&RD.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that the Magistrate Judge's Proposed Findings and Recommended Disposition [Doc. 49] are ADOPTED.
IT IS FURTHER ORDERED that Plaintiff's Motion for Attorney Fees Under Equal Access to Justice Act [Doc. 45] is GRANTED. Plaintiff is authorized to receive $7,628.40 for payment to his attorneys for services before this Court, as permitted by the Equal Access to Justice Act, 28 U.S.C. § 2412, and in accordance with Manning v. Astrue, 510 F.3d 1246, 1255 (10th Cir. 2007).
IT IS FURTHER ORDERED that if Plaintiff's counsel is ultimately granted attorney fees pursuant to 42 U.S.C. § 406(b) of the Social Security Act, counsel shall refund the smaller award to Plaintiff pursuant to Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) ("Congress harmonized fees payable by the Government under EAJA with fees payable under § 406(b) out of the claimant's past-due Social Security benefits in this manner: Fee awards may be made under both prescriptions, but the claimant's attorney must refun[d] to the claimant the amount of the smaller fee.") (internal quotation marks omitted).
IT IS SO ORDERED.
/s/ _________
SENIOR UNITED STATES DISTRICT JUDGE