United States District Court, D. New Mexico
MATTER comes before the Court on Plaintiff's Motion for
Attorney Fees Pursuant to 42 U.S.C. § 406(b). Doc. 34.
In the Motion, Plaintiff requests attorney's fees in the
amount of $6, 944.75. In response, the Social Security
Administration represents that because awards under Section
406(b) are paid from the claimant's benefits and not from
agency funds, the agency is not an interested party to
Plaintiff's Motion and accordingly takes no position on
the requested relief. Doc. 35. After reviewing
Plaintiff's Motion and being otherwise fully advised in
the premises, I conclude 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. Doc. 1. On January 21, 2016, the Court
granted Plaintiff's Motion to Reverse and Remand. Doc.
27. On April 21, 2016, Plaintiff filed an opposed Motion for
Attorney Fees under the Equal Access to Justice Act, 28
U.S.C. 2412(d). Doc. 29. Following briefing, I granted
Plaintiff's Motion and awarded Plaintiff $6, 365.00 in
attorney's fees. Doc. 33.
remand, the Social Security Administration found Plaintiff to
be disabled and awarded past-due benefits. Doc. 34-1. The
Social Security Administration advised Plaintiff that it was
withholding $6, 944.75 from his past-due benefits to pay for
attorney's fees in the event Plaintiff's counsel
brought a claim for attorney's fees pursuant to the
retainer agreement. Doc. 34-1 at 16. Plaintiff's counsel
now seeks authorization from this Court for an award of
compensation for legal services in that amount. Doc. 34.
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 fees
awarded under the Equal Access to Justice Act, pursuant to 28
U.S.C. § 2412 which are paid in addition to past-due
benefits, § 406(b) fees are paid out of past-due
benefits. Wrenn ex re. Wrenn v. Astrue, 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, 496 (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, I find that the legal representation by Plaintiff's
counsel was more than adequate and that a fully favorable
decision was obtained. I further find that Plaintiff's
counsel did not delay proceedings before this Court and that
the present Motion was filed within a reasonable time after
Plaintiff received notice of entitlement to past-due
benefits. As for the fee amount, I find the amount requested
reasonable under the circumstances. As noted above, Plaintiff
is requesting $6, 944.75 for 33.5 hours of work. Doc. 34-1 at
20. This computes to approximately $207.00 per hour which is
reasonable and consistent with previous awards by this Court
and other decisions in this District. See Martinez v.
Colvin, Civ. No. 14-451, Doc. 39 (D.N.M. Aug. 29, 2017)
(awarding $18, 007 for approximately 38.55 hours or $463.00);
Dimas v. Astrue, Civ. No. 03-1157, Doc. 34 (D.N.M.
December 18, 2007) (awarding $17, 000 for 38.26 hours or
$444.23.00 per hour); Saiz v. Colvin, Civ. No.
15-305, Doc. 32 (D.N.M. July 21, 2017) (awarding $14, 112 for
32.9 hours or approximately $429 per hour).
on the foregoing, Plaintiff's Motion for Attorney Fees
Pursuant to 42 U.S.C. § 406(B) and ...