United States District Court, D. New Mexico
GERALDINE MAEZ, on behalf of MIGUEL E. MAEZ, Jr., Plaintiff,
NANCY A. BERRYHILL, Deputy Commissioner for Operations of the Social Security Administration, Defendant.
ORDER GRANTING MOTION FOR ATTORNEY FEES PURSUANT TO
42 U.S.C. § 406(b)
FASHING, UNITED STATES MAGISTRATI JUDGE.
MATTER comes before the Court upon attorney Michael
Armstrong's Motion for Order Authorizing Attorney Fees
Pursuant to 42 U.S.C. § 406(b) and Supporting
Memorandum, filed on September 18, 2018. Doc. 32. The motion
seeks $16, 694.25 in attorney fees for legal services
rendered before the Court. Id. at 1. The
Commissioner states that she is not a party to § 406(b)
fee awards and takes no position on the motion. Doc. 33 at 2.
Having reviewed the briefing, the record, and the applicable
case law, and being otherwise fully advised in the premises,
I find the motion well taken and will GRANT it.
Maez filed applications for Supplemental Security Income
(“SSI”) and Disability Insurance Benefits on
April 22, 2009. AR 133-41, 153-55.  After being denied initially
and upon reconsideration, Mr. Maez requested and received a
hearing before an Administrative Law Judge
(“ALJ”). AR 52-78, 85-88, 90-97. The ALJ issued
her unfavorable decision on September 23, 2011. AR 35-51. Mr.
Maez requested that the Appeals Council review the ALJ's
unfavorable decision, and submitted additional medical
evidence. AR 30-33, 230-35. On February 21, 2013, the Appeals
Council denied the request for review. AR 7-13. Mr. Maez
first appealed to this Court on April 24, 2013. Maez. v.
Social Security Admin., No. 13cv381 WPL (Doc. 1)
(D.N.M.). On July 21, 2014, Magistrate Judge Lynch remanded
this case, due in part to the ALJ's failure to evaluate
“all of the evidence in the record to determine the
extent to which Dr. Weather's [July 20, 2011, AR 810]
opinion that Maez is unable to work is supported by that
record, ” and due to the ALJ's failure to
“describe how Dr. Weather's opinion was
inconsistent with the medical evidence.” AR 896.
March 11, 2013, while his first appeal was pending in this
Court, Mr. Maez filed a second claim for SSI. AR 836, 929. On
November 4, 2014, after receiving Judge Lynch's remand
order, the Appeals Council vacated the decision of the
Commissioner, remanded the case to the ALJ, and consolidated
Mr. Maez's claims. Id. On August 4, 2015, the
ALJ held a second hearing. AR 855-78. On September 26, 2015,
Mr. Maez died from a ruptured abdominal aortic aneurysm. AR
1020. His widow, Geraldine Maez, filed a notice to become a
substitute party and proceed with Mr. Maez's claim. AR
1018. On March 7, 2016, the ALJ issued her second decision,
which was partially favorable-finding him disabled as of
September 5, 2014, when his age category changed to “an
individual closely approaching advanced age.” AR
832-54. Because this Court had previously remanded Mr.
Maez's case, Mr. Maez was not required to seek Appeals
Council review again, and Mr. Maez timely appealed to this
Court on July 1, 2016. Doc. 1; see also 20 C.F.R.
Maez filed his Motion to Reverse and Remand for a Rehearing
with Supporting Memorandum on February 24, 2017. Doc. 19. The
Court granted this motion, remanded, and entered a final
judgment on December 14, 2017 in favor of Mr. Maez, finding
that the ALJ failed to properly apply the treating physician
rule to the opinion of Mr. Maez's treating cardiologist,
Dr. Weathers. Docs. 26, 27. On March 22, 2018, Mr. Maez filed
an Unopposed Motion for Attorney Fees Pursuant to the Equal
Access to Justice Act, requesting $6, 700.00 in attorney
fees. Doc. 30. The Court granted this motion. Doc. 31.
remand, the Appeals Council-after consulting a Council
medical consultant who agreed with treating physician Dr.
Weather's assessment that Mr. Maez was unable to work-
found that Mr. Maez met a listing for aneurysm of aorta or
major branches and found him disabled from his alleged onset
date of April 6, 2009. Doc. 32-1 at 4-7. The Social Security
Administration awarded Mr. Maez $66, 777.00 in back benefits.
Id. at 13-16. The Commissioner withheld $16, 694.25
from his past-due benefits to pay for attorney fees.
Id. at 13. Mr. Armstrong now requests that he be
awarded the $16, 694.25 as attorney fees for legal services
rendered before this Court. Doc. 32 at 2.
406(a), title 42, United States Code, governs fees for
representation at administrative proceedings, and §
406(b) governs fees for representation in court. McGraw
v. Barnhart, 450 F.3d 493, 498 (10th Cir. 2006).
“[E]ach authority sets fees for the work done before
it; thus, the court does not make fee awards for work at the
agency level, and the Commissioner does not make fee awards
for work done before the court.” Id. Attorneys
representing Social Security claimants in court may seek fees
for their work under both EAJA and under § 406.
Id. at 497.  If the Court awards both EAJA fees and
§ 406 fees, however, counsel must refund the smaller
amount to the claimant. Id.
Whenever a court renders a judgment favorable to a claimant
under this subchapter who was represented before the court by
an attorney, the court may determine and allow as part of its
judgment 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 by reason of such judgment.
tenor of 406(b) is permissive rather than mandatory. It says
that the court may make such an award, not that such an award
shall be made.” Whitehead v. Richardson, 446
F.2d 126, 128 (6th Cir. 1971). Traditionally, an award of
attorney fees is a matter within the sound discretion of the
court. Id. “[T]he Social Security Act (SSA),
42 U.S.C. § 406(b)(1), allows the district court to
award attorney's fees to claimant's counsel when the
court remands a Title II Social Security disability case for
further proceedings and the Commissioner ultimately
determines that the claimant is entitled to an award of
past-due benefits.” McGraw, 450 F.3d at
Gisbrecht v. Barnhart, the Supreme Court rejected
the lodestar method of calculating attorney fees for Social
Security cases, “under which the number of hours
reasonably devoted to each case was multiplied by the
reasonable hourly fee.” 535 U.S. 789, 798-99 (2002).
The Supreme Court instead concluded that Congress designed
§ 406(b) “to control, not displace, fee agreements
between Social Security benefit claimants and their
counsel.” Id. at 793. Courts should review fee
arrangements “as an independent check, to assure that
they yield reasonable results in particular cases.”
Id. at 807. The statute imposes the
25%-of-past-due-benefits limitation on fees as a ceiling,
rather than as a standard to substantiate reasonableness.
reasonableness determination is “based on the character
of the representation and the results the representative
achieved.” Gisbrecht, 535 U.S. at 808. Factors
relevant to the reasonableness of the fee request include:
(i) whether the attorney's representation was
substandard; (ii) whether the attorney was responsible for
any delay in the resolution of the case; and (iii) whether
the contingency fee is disproportionately large in comparison
to the amount of time spent on the case. See id. at
808. Ultimately, plaintiff's attorney has the burden of
showing that the fee sought is reasonable. Id. at
807 (“Within the 25 percent boundary, . . . the
attorney for the successful claimant must show that the fee
sought is reasonable for the services rendered.”). A
court may require the plaintiff's attorney to submit a
record of the hours spent representing the plaintiff and a
statement of the lawyer's normal hourly billing rate for
non-contingency fees cases. Id. at 808. The statute
does not specify a deadline for requesting fees. See
42 U.S.C. § 406(b). The Tenth Circuit has held,
however, that a request “should be filed within a
reasonable time of the Commissioner's decision awarding
benefits.” McGraw, 450 F.3d at 505.