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Hewlett v. Berryhill

United States District Court, D. New Mexico

October 16, 2018

NANCY A. BERRYHILL, Deputy Commissioner for Operations of the Social Security Administration, Defendant.


          Laura Fashing United States Magistrate Judge.

         THIS 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.

         I. Procedural History

         Ms. Hewlett filed an application for Disability Insurance Benefits on April 26, 2011. AR 145-51.[1] 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).

         Ms. 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.

         On 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.

         II. Standard

         Section 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.[2] If the Court awards both EAJA fees and § 406 fees, however, counsel must refund the smaller amount to the claimant. Id.

         Under 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.

         “The 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 495-96.

         In 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. Id.

         The 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.

         III. ...

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