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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF NEW YORK
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`ANDRE HILL,
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`Plaintiff,
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`—against-
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`:
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`AND ORDER
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`MEMORANDUM DECISION
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`COMMISSIONER OF SOCIAL SECURITY,
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`l4 Civ. 9665 (GBD) (BCM)
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`____________________________________ X
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`Defendant.
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`GEORGE B. DANIELS, United States District Judge:
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`Plaintiff filed a motion on December 12, 2016 for attorneys’ fees and costs under the Equal
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`Access to Justice Act, 28 U.S.C. § 2412(d) (“EAJA”), after this Court remanded a decision of the
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`Commissioner of Social Security (“Commissioner”) that denied Plaintiff’s application for
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`disability insurance benefits.
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`(ECF No. 21.) This matter was referred to the Magistrate Judge.
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`(ECF No. 23.) Before this Court is Magistrate Judge Barbara Moses’ Report and Recommendation
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`(“‘Repoit,” ECF No. 29), recommending that this Court grant Plaintiff’s motion.
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`(Report at 11.)
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`The Report contains no clear error of law. Accordingly, this Court adopts the Report in full.
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`1.
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`LEGAL STANDARD
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`This Court may accept, reject, or modify, in whole or in part, the findings set forth in the
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`Report. 28 U.S.C. § 636(b)(1)(C). When no party files objections to a Report, this Court may
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`adopt the Report if “there is no clear error on the face of the record.” Adee Motor Cars, LLC v.
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`Amara, 388 F. Supp. 2d 250, 253 (S.D.N.Y. 2005) (quoting Nelson v. Smith, 618 F. Supp. 1186,
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`1189 (S.D.N.Y. 1985)); Wife’s v. United Parcel Service, Inc, 262 F. Supp. 2d 163, 169 (S.D.N.Y.
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`2003) (“To accept the report and recommendation of a magistrate, to which no timely objection
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`Case 1:14-cv-09665-GBD-BCM Document 30 Filed 11/21/17 Page 2 of 3
`Case 1:14-cv-09665-GBD-BCM Document 30 Filed 11/21/17 Page 2 of 3
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`has been made, a district court need oniy satisfy itself that there is no clear error on the face of the
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`record”) (internal citation omitted).
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`Magistrate Judge Moses advised the parties that failure to file timely objections would
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`constitute a waiver of those objections on appeal.
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`(Report at 11.) No objections to the Rep01t
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`have been filed.
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`II.
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`AWARDING FEES AND COSTS UNDER SECTION 2412(D) 0F EAJA
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`Section 2412(d) of EAJA provides that “a court shall award to a prevailing party other than
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`the United States fees and other expenses, in addition to any costs.
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`.” 28 U.S.C. § 2412(d)(l )(A).
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`The section provides for two exceptions to such award: (I) when “the United States was
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`substantially justified” 'or (2) when “special circumstances make an award unjust.” Id. The
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`Commissioner did not dispute that Plaintiff was the “prevailing party.” (Report at 3.) Instead the
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`Commissioner argued that special circumstances would make an award unjust because the remand
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`was based on reasons not raised by Plaintiff‘s counsel.
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`(Id) Magistrate Judge Moses properly
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`rejected this argument finding that Plaintiff’s successful result rests in part on his counsel briefing
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`one of the two grounds upon which the case was remanded. (Id. at 6.) Thus, there is no sufficient
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`basis for finding that special circumstances make an award unjust in this case. (Id)
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`Magistrate Judge Moses also found that the Commissioner had not satisfied the burden of
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`showing that her position was substantially justified in denying Plaintiff’s application for disability
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`insurance benefits.
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`(Id) Magistrate Judge Moses correctiy pointed to the fact that the second
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`ground for remand was that the ALJ mischaracterized Plaintiff’s testimony—a position not
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`substantially justified in any case.
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`(Id. at 11.)
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`Finding no clear error of law, this Court adopts the Report in full.
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`Case 1:14-cv-09665-GBD-BCM Document 30 Filed 11/21/17 Page 3 of 3
`, Case 1:14-cv-09665-GBD-BCM Document 30 Filed 11/21/17 Page 3 of 3
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`II.
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`CONCLUSION
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`Plaintiff’s motion is GRANTED. Plaintiff is awarded attorneys’ fees and the cost of filing
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`in the amount of $9,332.30]
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`Dated: New York, New York
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`November 21 , 2017
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`SO ORDERED.
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`8 pol/Mb
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`.
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`R
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`B. DANIELS
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`nited States District Judge
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`’ Due to a clerical error, the Report did not to account for the $350.00 filing fee in the award calculation.
`An award of attorneys’ fees and costs is GRANTED in the total amount of $93323 8.
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`3
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