Roybal v. Social Security Administration

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

REYNALDO J. ROYBAL, Plaintiff, vs. No. CIV 16-1233 MV/GBW SOCIAL SECURITY ADMINISTRATION, Andrew Saul, Commissioner of Social Security Administration, Defendant.

ORDER ADOPTING MAGISTRATE JUDGE’S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION THIS MATTER is before the Court on Plaintiff’s Request for Attorney Fee Determination of Fees Pursuant to 42 U.S.C. § 406(b) (Doc. 33) and the Magistrate Judge’s Proposed Findings and Recommended Disposition (“PFRD”) (Doc. 35).

This case was referred to the Magistrate Judge to conduct hearings and perform legal analysis pursuant to 28 U.S.C. § 636(b)(1)(B), (b)(3) and Va. Beach Fed. Sav. & Loan Ass’n v. Wood, 901 F.2d 849 (10th Cir. 1990). See Doc. 27. The Magistrate Judge filed his PFRD recommending that Plaintiff’s Motion be granted on July 23, 2020. Doc. 35. Neither Plaintiff nor Defendant filed objections to the Magistrate Judge’s PFRD within the allotted time. Appellate review of these issues is therefore waived. See United States v. One Parcel of Real Prop., 73 F.3d 1057, 1059–60 (10th Cir. 1996). Failure to object to the PFRD also waives the right to de novo review by the district court. See id. at 1060; Thomas v. Arn, 474 U.S. 140, 149–150 (1985).

Nevertheless, the Court decided sua sponte to conduct a de novo review of the Magistrate Judge’s findings in this case. See One Parcel, 73 F.3d at 1061. The Court hereby concurs with all of the factual and legal conclusions recited therein.

Wherefore, IT IS HEREBY ORDERED that the Magistrate Judge’s Proposed Findings and Recommended Disposition (Doc. 35) are ADOPTED. Plaintiff’s Request for Attorney Fee Determination of Fees Pursuant to 42 U.S.C. § 406(b) (doc. 33) is GRANTED, and the Court hereby authorizes an award of $24,000.00 in attorney’s fees, to be paid to Plaintiff’s counsel by the Commissioner from the funds withheld for this purpose.

IT IS FURTHER ORDERED that Plaintiff's counsel shall refund to Plaintiff the fee of $7,500.00 awarded under the Equal Access to Justice Act, 28 U.S.C. § 2412, pursuant to Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).

Uf , MARTHA WAZOUE2 UNITED STATES DISTRICT JUDGE