United States District Court, D. New Mexico
ORDER GRANTING MOTION FOR ATTORNEY FEES PURSUANT TO
42 U.S.C. § 406(B)
Fashing United States Magistrate 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 April 18, 2018. Doc. 26. The motion
seeks $22, 731.50 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. 27 at 1.
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 IN PART.
Hewlett filed an application for Disability Insurance
Benefits on April 26, 2011. AR 145-51. After being
denied initially and upon reconsideration, Ms. Hewlett
requested and received a hearing before an Administrative Law
Judge (“ALJ”). AR 33-63, 79-82, 86-91. The ALJ
issued her unfavorable decision on September 24, 2014. AR
33-63. Ms. Hewlett requested review by the Appeals Council.
AR 7-8. On February 25, 2016, the Appeals Council denied the
request for review. AR 1-6. Ms. Hewlett timely appealed to
this Court on April 26, 2016. Doc. 1; see also 20
C.F.R. § 404.984(a).
Hewlett filed her Motion to Reverse and Remand for a
Rehearing with Supporting Memorandum on December 16, 2016.
Doc. 16. On March 6, 2017, the Commissioner filed an
Unopposed Motion for Remand Pursuant to Sentence Four of 42
U.S.C. § 405(g). Doc. 20. The Court granted this motion,
remanded the case for additional proceedings, and entered
final judgment. Docs. 21, 22. On June 5, 2017, Ms. Hewlett
filed a Motion for Attorney Fees and Costs Pursuant to the
Equal Access to Justice Act. Doc. 23. The parties
subsequently stipulated to a compromise settlement of $5,
250.00, which the Court approved. Docs. 24, 25.
remand, the ALJ held a hearing and, on December 29, 2017,
issued a final administrative decision awarding Ms. Hewlett
disability benefits. Doc. 26-1 at 1-15. The Social Security
Administration awarded Ms. Hewlett $130, 926.00 in back
benefits. Id. at 19. The SSA withheld $32, 731.50
from her past-due benefits to pay for attorney fees.
Id. The SSA awarded Mr. Armstrong $10, 000 for work
performed before the Administration. Docs. 26 at 5, 26-1 at
19. Mr. Armstrong now requests that he be awarded $22, 731.50
as attorney fees for legal services rendered before this
Court. Doc. 26 at 1.
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.
42 U.S.C. § 406(b)(1),
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.