United States District Court, D. New Mexico
ORDER GRANTING APPLICATION FOR ATTORNEY FEE
HONORABLE KEVIN R. SWEAZEA, UNITED STATES MAGISTRATE JUDGE.
MATTER is before the Court on Plaintiff's Unopposed
Motion for Order Authorizing Attorney Fees Pursuant to 42
U.S.C. § 406(B) and Supporting Memorandum
(“Motion”) (Doc. 33), filed February 4, 2019.
Plaintiff's attorney, Michael Armstrong
(“Plaintiff's Counsel”), moves the Court for
an order authorizing attorney fees in the amount of $7,
335.00 for legal services rendered before this Court. (Doc.
33 at 1). Defendant states she has no objection to
Plaintiff's Motion. Having reviewed the parties'
filings, the relevant law, and otherwise being fully advised
in the premises, the Court finds that Plaintiff's Motion
is well-taken and that it shall be GRANTED.
instituted an action in this Court on August 8, 2016, seeking
judicial review of Defendant's denial of her application
for Social Security disability benefits. (Doc. 1). On July
25, 2017, this Court granted Plaintiff's request for
relief, and remanded the case to the Commissioner for further
proceedings. (Doc. 29). Plaintiff subsequently was awarded
attorney fees in the amount of $7, 500.00 pursuant to the
Equal Access to Justice Act (“EAJA”). (Doc. 32).
remand, Defendant determined Plaintiff to be disabled,
entered a fully favorable decision, and awarded Plaintiff
past-due benefits. (Doc. 33-2, Exhibit A). Defendant advised
Plaintiff on November 24, 2018, that $13, 335.00 was being
withheld from Plaintiff's total benefit amount pending an
award of attorney fees pursuant to 42 U.S.C. § 406(B).
(Doc. 33-2, p. 19). Plaintiff's Counsel requests that the
Court authorize payment of $7, 335.00 as attorney fees for
legal services provided, which is well within 25 percent of
total back benefits. Plaintiff will receive, as refund, the
EAJA fee previously awarded by this Court in the amount of
$7, 500.00. However, this amount was subject to an
offset under the Treasury Offset Program (31 U.S.C. §
3716(c)(3)(B) (2006)), and, consequently, $4, 069.95 in EAJA
fees was received. (Exhibit F, Dept. of Treasury
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 the past-due benefits. Wrenn
ex rel. Wrenn v. Astrue, 525 F.3d 931, 933-34 (10th Cir.
2008). If fees are awarded under both the 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, 495-96 (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 percent of the past- due benefits.
Gisbrecht, 535 U.S. at 807. 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 percent of past-due benefits, because there
is no presumption that 25 percent is reasonable. Id.
at 807, n.17. Counsel has the burden of demonstrating the
reasonableness of the fees. Id. at 807.
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: (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. 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 hourly billing rate for non-contingency fees 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 Plaintiff's Counsel's
representation of Plaintiff was more than adequate. Counsel
obtained a fully favorable decision for Plaintiff, and did
not delay the proceedings before this Court in any way. The
instant motion was filed within one month of Plaintiff
receiving notice that she was entitled to past-due benefits.
(Doc. 33-2, Ex. B). The Court finds this to be a reasonable
amount of time.
the requested fee is not disproportionately large in
comparison to the amount of time spent on the case, given
Plaintiff's Counsel's experience working on Social
Security cases. (Doc. 33-1 Affidavit). Plaintiff's
Counsel documented 42.01 total attorney hours in representing
Plaintiff before this Court. Id. Awarding counsel
the requested $7, 335.00 would result in an hourly fee of
$174.60 for attorney work performed before this Court.
Considering Plaintiff's Counsel's experience and
reputation in Social Security representation, and the fact
that this fee award is within the range of other fee awards
authorized in this District under § 406(b), the Court
finds that the fee requested is reasonable. See,
e.g., Salazar v. Berryhill, 14-283 KRS (Doc.
30) (awarding $19, 442.25 for 27.42 hours, or $709.05 per
hour); Bigsby v. Colvin, Civ. 12- 1207 CG (Doc. 31)
(awarding $21, 839.00 for 37.33 hours, or $585.03 per hour);
Gallegos v. Colvin, Civ. 12-321 SMV (Doc. 32)
(awarding $10, 000.00 for 16.2 hours, or $617.28 per hour);
Montes v. Barnhart, Civ. 01-578 BB/KBM (Docs. 19,
22) (awarding $10, 000 for 14.25 hours, or $701.75 per hour).
In addition, the Court notes that Defendant does not oppose
this Motion, and it is the duty of the Court to determine
whether the fees are reasonable. (Doc. 28).
IS THEREFORE ORDERED that Plaintiffs Unopposed
Motion for Attorney Fees Pursuant to 42 U.S.C. §
406(b)(1)(A) with Supporting Memorandum, (Doc. 33), be
GRANTED. Plaintiffs Counsel is awarded $7,
335.00 for legal services rendered before this Court.
IS FURTHER ORDERED that Plaintiffs Counsel shall
refund to Plaintiff $4, 069.95, the amount awarded under EAJA
which is not subject to offset under the Treasury ...