United States District Court, D. New Mexico
ORDER GRANTING § 406(B) ATTORNEY FEES
MATTER is before the Court on Plaintiff's Motion for an
award of $19, 442.25 in attorney fees under 42 U.S.C. §
406(b)(1). [Doc. No. 27]. Defendant declined to take a
position with regard to the reasonableness of the requested
award. [Doc. No. 29]. Being fully advised in the premises,
the Court finds that Plaintiff's Motion is well-taken and
should be granted.
instituted an action in this Court seeking judicial review of
Defendant's denial of his application for Social Security
disability benefits. This Court reversed the decision of the
Commissioner and remanded for a new hearing and awarded EAJA
fees in the amount of $5, 191.80 and costs in the amount of
$400.00. See Doc. Nos. 20 and 26. Following this
Court's remand, the Social Security Administration found
Plaintiff to be disabled and awarded $101, 770.00 in past due
benefits. The Administration should have withheld twenty-five
percent of those benefits, $25, 442.50, in the event that
Plaintiff's counsel were to bring a claim for attorney
fees pursuant to the retainer agreement but, in error, only
withheld $6, 000. [Doc. No. 27-1, p. 18]. The $6, 000 was
paid to Michael Armstrong on January 26, 2017, and the
remaining $19, 442.25 was released to Plaintiff in error.
[Id.]. Plaintiff's counsel now seeks
authorization from this Court for an award of compensation
for legal services in an amount equaling twenty-five percent
of Plaintiff's past due benefits less the $6, 000 he
court renders a judgment favorable to a Social Security
claimant who was represented before the court by an attorney,
the court may allow “a reasonable fee for such
representation, not in excess of 25 percent of the total of
the past-due benefits to which the claimant is
entitled.” 42 U.S.C. § 406(b)(1)(A). Unlike EAJA
fees, which are paid in addition to past-due benefits, §
406(b) fees are paid out of past-due benefits. Wrenn ex
rel. Wrenn v. Astrue, 1');">525 F.3d 931, 933-34 (10th Cir.
2008). If fees are awarded under both EAJA and § 406(b),
the attorney must refund the lesser award to the claimant.
Id. at 934. The court may award fees under §
406(b) when “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 493-96
(10th Cir. 2006).
§ 406(b) does not prohibit contingency fee agreements,
it renders them unenforceable to the extent that they provide
for fees exceeding 25% of the past-due benefits.
Gisbrecht v. Barnhart, 535 U.S. 798, 807 (2002).
Section 406(b) also requires the court to act as “an
independent check” to ensure that fees are reasonable
even if they are less than 25% of the past-due benefits
because there is no presumption that 25% is reasonable.
Id. at 807 n. 17. Counsel has the burden of
demonstrating the reasonableness of the fees. Id. at
807. The reasonableness determination is “based on the
character of the representation and the results the
representative achieved.” Id. at 808. Factors
relevant to the reasonableness of the fee request include:
(1) whether the attorney's representation was
substandard; (2) whether the attorney was responsible for any
delay in resolution of the case; and (3) whether the
contingency fee is disproportionately large in comparison to
the amount of time spent on the case. Id. 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 billing rate for non-contingency fee
cases. Id. The statute does not specify a deadline
for requesting fees. See 42 U.S.C. § 406(b).
The Tenth Circuit, however, 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.
case, the Court finds that the legal representation by
Michael D. Armstrong of Plaintiff was more than adequate, and
he obtained a fully favorable decision. Counsel did not delay
the proceedings before this Court. The instant Motion was
filed within a reasonable time after Plaintiff received
notice of entitlement to past-due benefits. The Court further
finds that the requested fee is equal to the remainder of the
25% permitted by the retainer agreement and proportionate
given the amount of time (27.42 hours) spent on the case. The
requested attorney fees would therefore be in line with other
fee awards authorized in this District under 406(b). See
e.g., Marquez v. Astrue, CIV 10-1165 CG (Doc.
30) (awarding $10, 105 for 18.9 hours, or $529.00 per
hour); Dimas v. Astrue, CIV 03-1157 RHS (Doc.
34) (awarding $17, 000 for 38.26 hours or $444.23 per
hour). Having performed its “independent check”
duties, the Court finds the requested award to be both
appropriate and reasonable.
IS, THEREFORE, ORDERED that Plaintiff's Motion
for attorney fees under § 406(b) is
granted. The Court hereby authorizes $19,
442.25 in attorney fees for legal services rendered in United
States District Court, to be paid by the Social Security
counsel will then reimburse Plaintiff the EAJA award of $5,
[1" name="ftn.FN1" id=
"ftn.FN1">1] Nancy A. Berryhill is now the Acting
Commissioner of Social Security. Pursuant to Rule 25(d) of
the Federal Rules of Civil Procedure, Nancy A. Berryhill is
therefore substituted for Acting Commissioner Carolyn W.
Colvin as the defendant in this suit.
 Plaintiff's attorney, Michael
Armstrong, briefly notes that $25, 442.50 minus $6, 000
equals $19, 442.50, rather than $19, 442.25. [Doc. No. 27, p.
2, n. 1]. However, as Mr. Armstrong does not belabor the
twenty-five cent discrepancy, the Court will consider the