Tocco v. Commissioner of Social Security

Opinion

UNITED STATES DISTRICT COURT MIDDLE DISTRICT OF FLORIDA TAMPA DIVISION

CHRISTOPHER MARCO TOCCO,

Plaintiff,

v. Case No. 8:21-cv-399-TPB-SPF

COMMISSIONER OF SOCIAL SECURITY,

Defendant. /

ORDER ADOPTING REPORT AND RECOMMENDATION This matter is before the Court on consideration of the report and recommendation of Sean P. Flynn, United States Magistrate Judge, entered on February 28, 2023. (Doc. 39). Judge Flynn recommends that Plaintiff’s unopposed “Motion for Award of Attorney’s Fees Pursuant to 42 U.S.C. § 406(b)” (Doc. 37) be granted. Judge Flynn specifically recommends that Plaintiff’s counsel be awarded $5,829.75 in attorney’s fees and that counsel be directed to return $3,079.18 to Plaintiff, the amount awarded under EAJA. After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify the magistrate judge’s report and recommendation. 28 U.S.C. § 636(b)(1); 718 F.2d 198, 199 (4th Cir. 1983); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982). A district court must “make a de novo determination of those portions of the [report and recommendation] to which an objection is made.” 28 U.S.C. § 636(b)(1)(C). When no objection is filed, a court reviews the report and recommendation for clear error. Macort v. Prem, Inc., 208 F. App’x 781, 784 (11th Cir. 2006); Nettles v. Wainwright, 677 F.2d 404, 409 (5th Cir. 1982). Upon due consideration of the record, including Judge Flynn’s report and recommendation, the Court adopts the report and recommendation. Consequently, Plaintiff's motion for attorney’s fees is granted. Accordingly, it is ORDERED, ADJUDGED, and DECREED: (1) Judge Flynn’s report and recommendation (Doc. 39) is AFFIRMED and ADOPTED and INCORPORATED BY REFERENCE into this Order for all purposes, including appellate review. (2) Plaintiff's unopposed “Motion for Award of Attorney’s Fees Pursuant to 42 U.S.C. § 406(b)” (Doc. 37) is hereby GRANTED. Plaintiff's counsel is awarded $5,829.75 in attorney’s fees. (3) Plaintiffs counsel is directed to refund $3,079.18 to Plaintiff, the amount awarded under the EAJA. (8) The Clerk is DIRECTED to enter an amended judgment that includes the award of attorney’s fees, as set forth herein. DONE and ORDERED in Chambers, in Tampa, Florida, this 15th day of March, 2023.

N Py Yh -TOMBARBER ———“‘“‘“‘ OC*” UNITED STATES DISTRICT JUDGE

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