United States District Court, D. New Mexico
ORDER GRANTING MOTION FOR ATTORNEYS'
WILLIAM P. LYNCH UNITED STATES MAGISTRATE JUDGE
Ruybal filed a motion for attorneys' fees pursuant to 42
U.S.C. § 406(b). (Doc. 3.) The Social Security
Administration (“SSA”) filed a motion to extend
time to file its response (Doc. 33), which is granted nunc
pro tunc, but takes no position on this motion as it is not
the true party in interest (Doc. 34); see Gisbrecht v.
Barnhart, 535 U.S. 789, 798 n.6 (2002). For the reasons
explained below, I grant Ruybal's motion.
filed a claim for disability insurance benefits. After his
claim was denied at all administrative levels, he brought an
action for judicial review, represented by the Michael D.
Armstrong Law Office. Concluding that the administrative law
judge (“ALJ”) committed legal error, I remanded
the matter to the SSA for a rehearing. Ruybal then filed an
opposed motion for attorneys' fees under the Equal Access
to Justice Act (“EAJA”). (Doc. 25.) After
reviewing briefing on the matter, I granted the motion and
awarded $8, 103.80 in attorney fees. (Doc. 31.) The EAJA fee
was subject to an offset under the U.S. Treasure Offset
Program, 31 U.S.C. § 3716(c)(3)(B). (Doc. 39 at 2; Doc.
39-1 at 3.)
remand, the ALJ issued a fully favorable decision dated
November 20, 2015, finding that Ruybal has been disabled
since December 8, 2006. (Doc. 37-1 at 1.) After some
confusion, Armstrong received confirmation from the SSA that
it withheld $8, 525.78 from Ruybal's payments,
“which represents the balance of 25 percent of the
past-due benefits for Alan T Ruybal and family, in
anticipation of direct payment for an authorized attorney s
fee.” (Doc. 39-1 at 1.)
12, 2016, the Michael D. Armstrong Law Office filed the
instant motion seeking attorneys' fees pursuant to 42
U.S.C. § 406(b). Noting that counsel was awarded $6,
000.00 in fees for work performed before the
the firm now seeks $8, 525.78 under § 406(b) for
services rendered in the United States District Court. (Doc.
39 at 1.)
fees may be deducted from a successful social security
claimant's award of past-due benefits. Separate
subsections of 42 U.S.C. § 406 authorize fee awards for
representation before the SSA and in court, allowing
attorneys to receive fees for their work in both settings.
See 42 U.S.C. § 406(a), (b). Fees awarded for
representation before the United States District Court are
not necessarily limited by the amount of fees awarded by the
Commissioner for representation before the SSA. Wrenn ex
rel. Wrenn v. Astrue, 525 F.3d 931, 937 (10th Cir.
representation in court, courts may award fees under §
406(b) when, as in this case, “the court remands a . .
. case for further proceedings and the Commissioner
ultimately determines that the claimant is entitled to an
award of past-due benefits.” McGraw v.
Barnhart, 450 F.3d 493, 496 (10th Cir. 2006). The
statute limits a fee award for representation before a court
to 25% of the claimant's past-due benefits. 42 U.S.C.
§ 406(b)(1)(A). However, if fees are awarded under both
EAJA and § 406(b), the attorney must refund the lesser
award to the claimant. McGraw, 450 F.3d at 497 n.2
(10th Cir. 2006).
§ 406(b) permits contingency fee agreements, it requires
the reviewing court to act as “an independent
check” to ensure that fees awarded pursuant to such
agreements are reasonable. Gisbrecht, 535 U.S. at
807. Fee agreements are flatly unenforceable to the extent
that they provide for fees exceeding 25% of past-due
benefits, but fees may be unreasonable even if they fall
below this number, and there is no presumption that fees
equating to 25% of past-due benefits are reasonable.
Id. at 807 n.17. The attorney seeking fees bears the
burden of demonstrating the reasonableness of the fee.
Id. at 807.
reasonableness determination is “based on the character
of the representation and the results the representative
achieved.” Id. at 808. If the attorney is
responsible for delay, the fee may be reduced so that the
attorney does not profit from the accumulation of benefits
while the case was pending in court. Id. Such a
reduction also protects the claimant, as fees paid under
§ 406(b) are taken from, and not in addition to, the
total of past-due benefits. 42 U.S.C. § 406(b)(1)(A).
The fee may also be reduced if the benefits are large in
comparison to the amount of time spent on the case.
Gisbrecht, 535 U.S. at 808. A court may require the
claimant's attorney to submit a record of the hours spent
representing the claimant and a statement of the lawyer's
normal hourly billing rate for noncontingent-fee cases.
statute does not contain a time limit for fee requests.
However, the Tenth Circuit has held that a request
“should be filed within a reasonable time of the
Commissioner's decision awarding benefits.”
McGraw, 450 F.3d at 505 (citation omitted).
525.78 sought by the Michael D. Armstrong Law Office
represents 14.67% of the total past-due benefits ($6, 000.00
for services before the SSA and $8, 525.89 remaining, for the
balance of 25% of past-due benefits), and thus it does not
exceed the statutory cap. The firm's fee agreement with
Ruybal entitles it to no more than 25% of all past-due
benefits. (Doc. 32-2 at 10.) The sum of the $5, 909.00 fee
the Michael D. Armstrong Law Office ...