United States District Court, D. New Mexico
CURTIS L. THREADGILL, Plaintiff,
NANCY A BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER GRANTING ATTORNEY FEES PURSUANT TO 42 U.S.C.
H. RITTER U.S. MAGISTRATE JUDGE
matter comes before the Court on Plaintiff's Motion for
an Order Authorizing Attorney Fees Pursuant to 42 U.S.C.
§ 406(b) and Supporting Memorandum [Doc. 32], filed
March 2, 2019. The Commissioner declined to concur in the
instant Motion because she takes the position that she is not
the real party in interest regarding such fees. [See Doc. 30
at 4]. The Court has independently reviewed Plaintiff's
Motion, and agrees that it should be granted.
filed an action in this Court seeking judicial review of
Defendant's denial of his application for Social Security
disability benefits on April 12, 2016. [See Doc. 1]. After
Plaintiff filed his Motion to Remand [Doc. 23], the
Commissioner filed an Unopposed Motion to Reverse and Remand
for further Administrative Proceedings pursuant to 42 U.S.C.
§ 405(g). [Doc. 27]. This Court, the Honorable William
P. Lynch presiding, granted the Unopposed Motion and entered
a Final Order in Plaintiff's favor on December 22 and 23,
2016. [Docs. 28, 29]. The Court then granted Plaintiff's
Motion for Attorney Fees and Costs Pursuant to the Equal
Access to Justice Act (“EAJA”), awarding fees in
the amount of $3, 523.20. [Doc. 31]. Plaintiff's counsel
then obtained a fully favorable decision before the
Administration on remand. [See Doc. 32-1]. The
Administration, however, withheld twenty-five percent of
those benefits, $24, 331.00, in the event that
Plaintiff's counsel would elect to bring a claim for
attorney fees pursuant to the retainer agreement. [Doc.
32-2]. Plaintiff's counsel now seeks authorization from
this Court for an award of compensation for legal services in
an amount significantly less than that withheld ($13,
762.50). [Doc. 32, p. 1].
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 twenty-five percent (25%) 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 Section
406(b), the attorney must refund the lesser award to the
claimant. Id. The court may award fees under Section
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).
Section 406(b) does not prohibit contingency fee agreements,
it renders them unenforceable to the extent that they provide
for fees exceeding twenty-five percent (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 twenty-five percent
(25%) of the past-due benefits because there is no
presumption that twenty-five percent (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 spend on the case. Id. A court
may require the claimant's attorney to submit a record of
the hours spend 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 Gary
J. Martone of Plaintiff was more than adequate, and he
obtained a fully favorable decision without delaying matters
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
twenty-five percent (25%) permitted by the retainer agreement
and proportionate given the amount of time (18.45 hours)
spent on the case. While the requested hourly rate of roughly
$746/hour appears significantly higher than the usual fee
awards authorized in this district under Section 406(b),
see, e.g., Marquez v. Astrue, CV 10-1165 CG
(awarding $10, 105 for 18.9 hours, or $529.00 per hour);
Saiz v. Berryhill, CV 15-0305 KRS (awarding $14,
112.00 for 32.9 hours, or $428.94 per hour), the Court is
aware of other instances where the Martone Firm was awarded
between $618.00-$636.00 for its work. See Osborn v.
Colvin, CV15-1069 KBM. As such, having performed its
“independent check” duties, the Court finds the
requested award to be both appropriate and reasonable in this
IT IS HEREBY ORDERED that Plaintiff s Motion
for attorney fees under Section 406(b) is
granted. The Court hereby authorizes $13,
762.50 in attorney fees for legal services rendered in this
United States District Court, to be paid by the Social