United States District Court, D. New Mexico
ORDER GRANTING ATTORNEY FEES PURSUANT TO 42 U.S.C.
H. RITTER U.S. MAGISTRATE JUDGE
matter comes before the Court on Plaintiff's Motion for
Order Authorizing Attorney Fees Pursuant to 42 U.S.C. §
406(B) and Supporting Memorandum (Doc. 28), filed
December 6, 2017. The Commissioner “generally takes no
position on such petitions.” See Doc. 29.
However, “the Commissioner has no objection to the
petition in this case.” Id. The Court has
independently reviewed Plaintiff's Motion, and agrees
that it should be granted.
filed an action in this Court seeking judicial review of
Defendant's denial of his application for Social Security
disability benefits on November 12, 2014. See Doc.
1. After briefing was complete, Defendant filed an
Unopposed Motion to Reverse and Remand and for Entry of Final
Judgment pursuant to sentence four of 42 U.S.C. §
405(g), in which she requested that “the Court reverse
and remand the case to an administrative law judge (ALJ) for
a de novo hearing during which the ALJ should: (1) reevaluate
Plaintiff's ability to perform her past relevant work or
other work existing in significant numbers in the national
economy; and (2) obtain supplemental vocational expert
evidence.” Doc. 22. This Court, the Honorable
William P. Lynch presiding, granted Defendant's unopposed
motion on August 21, 2015. Doc. 23. The Court then
granted Plaintiff's Motion for Attorney Fees and Costs
Pursuant to the Equal Access to Justice Act
(“EAJA”), awarding fees in the amount of $4,
126.84 and $400 in costs. Doc. 27. Plaintiff's
counsel then obtained a fully favorable decision before the
Administration on remand. See Doc. 28-1 at 11. The
Administration, however, withheld twenty-five percent of
those benefits, $17, 995.75, in the event that
Plaintiff's counsel would elect to bring a claim for
attorney fees pursuant to the retainer agreement. Doc.
28-1 at 15. Plaintiff's counsel now seeks
authorization from this Court for an award of compensation
for legal services in an amount significantly less than that
withheld ($7, 995.75). Doc. 28 at 1.
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 twenty-five percent (25%) 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, 525 F.3d 931, 933-34 (10th Cir.
2008). If fees are awarded under both EAJA and Section
406(b), the attorney must refund the lesser award to the
claimant. Id. The court may award fees under Section
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).
Section 406(b) does not prohibit contingency fee agreements,
it renders them unenforceable to the extent that they provide
for fees exceeding twenty-five percent (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 twenty-five percent
(25%) of the past-due benefits because there is no
presumption that twenty-five percent (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 spend on the case. Id. A court
may require the claimant's attorney to submit a record of
the hours spend 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 fees are significantly below the
twenty-five percent (25%) permitted by the retainer agreement
and proportionate given the amount of time (21.93 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 (awarding $10, 105 for 18.9
hours, or $529.00 per hour); Saiz v. Berryhill, CIV
15-0305 KRS (awarding $14, 112.00 for 32.9 hours, or $428.94
per hour). Having performed its “independent
check” duties, the Court finds the requested award to
be both appropriate and reasonable.
IT IS HEREBY ORDERED that Plaintiff's Motion for attorney
fees under Section 406(b) is granted. The Court hereby
authorizes $7, 995.75 in attorney fees for legal services
rendered in this United States District Court, to be paid by
the Social Security Administration. ...