Opinion
No. 17-cv-0653 SMV
01-03-2018
DIANE MARIE LOCHTEFELD, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security Administration, Defendant
ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEY FEES UNDER EAJA
THIS MATTER is before the Court on Plaintiff's Motion for Attorney Fees under the Equal Access to Justice Act [Doc. 23], filed on December 19, 2017. Plaintiff requests attorney fees in the amount of $9,388.40 and costs in the amount of $400. Defendant filed no response, and the time for doing so has passed. Her failure to timely respond in opposition constitutes consent to grant the motion. See D.N.M.LR-Civ. 7.1(b). The Court, having considered the submissions of counsel, the record in this case, and the relevant law, and being otherwise fully advised in the premises, FINDS that the motion is well-taken and will be GRANTED.
IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED that Plaintiff's Motion for Attorney Fees under the Equal Access to Justice Act [Doc. 23] is GRANTED, and Plaintiff Diane Marie Lochtefeld is authorized to receive $9,788.40 for payment to her attorney for costs and 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/ _________
STEPHAN M. VIDMAR
United States Magistrate Judge
Presiding by Consent