United States District Court, D. New Mexico
SAMMY R. SMITH, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration, Defendant.
ORDER GRANTING § 406(B) ATTORNEY FEES
MATTER is before the Court on Plaintiff's Motion for an
award of $12, 438.00 in attorney fees under 42 U.S.C. §
406(b)(1). Doc. 28. The Motion recites that
Defendant took no position at the time of the filing, and the
record reflects that Defendant has since confirmed that she
takes no position at this time. Doc. 30. Being fully
advised in the premises, the Court finds 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. This Court reversed the decision of the
Commissioner and remanded for a new hearing and awarded EAJA
fees in the amount of $6, 555.00. See Docs. 24, 27.
Following this Court's remand, an ALJ issued a final
administrative decision fully favorable to Plaintiff and
withheld $18, 438.00 (25% of the awarded past due benefits in
the amount of $73, 752.00) in the event that Plaintiff's
counsel was to bring a claim for attorney fees pursuant to
the retainer agreement. Plaintiff's counsel now seeks
authorization from this Court for an award of compensation
for legal services in an amount significantly less than that
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 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 § 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 493-96
(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, the Court finds that the legal representation by
Michael D. Armstrong Law Office, LLC was more than adequate,
and it obtained a fully favorable decision for Plaintiff.
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 25% permitted by the retainer
agreement and proportionate given the amount of time (34.5
hours) efficiently 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 (Doc. 30)
(awarding $10, 105 for 18.9 hours, or $529.00 per hour);
Dimas v. Astrue, CIV 03-1157 RHS (Doc. 34)
(awarding $17, 000 for 38.26 hours or $444.23 per hour).
Having performed its “independent check” duties,
the Court finds the requested award to be both appropriate
IS HEREBY ORDERED that Plaintiffs Motion for
attorney fees under § 406(b) is
granted. The Court hereby authorizes $12,
438.00 in attorney fees for legal services rendered in United
States District Court, to be paid by the Social Security
Administration. Plaintiffs counsel will then reimburse
Plaintiff the sum of $6, 390.47 which represents the ...