United States District Court, D. New Mexico
ORDER GRANTING § 406(b) ATTORNEY FEES
MATTER comes before the Court upon Plaintiff's
Unopposed Motion for Order Authorizing [$25, 179.50
in] Attorney Fees Pursuant to 42 U.S.C. § 406(b). (Doc.
35). The Court, having considered the motion and the
reasonableness of the requested award, finds that the motion
is well-taken and should be granted.
27, 2016, Plaintiff instituted an action in this Court
seeking judicial review of Defendant's denial of her
application for Social Security disability benefits. On June
2, 2017, this Court granted Plaintiff's Motion to Reverse
or Remand (Doc. 17), and remanded the matter for additional
proceedings. (Doc. 30). Thereafter, the Court awarded
Plaintiff EAJA fees in the amount of $6, 523.30. (Doc. 34).
Following this Court's remand, the Social Security
Administration found Plaintiff to be disabled and awarded her
$124, 718.00 in past-due benefits. See Doc. 35-1, p.
17. The Administration withheld $31, 179.50-twenty-five
percent (25%) of the award-to cover potential attorney fees.
It disbursed $6, 000 of these funds to Michael Armstrong per
his initial fee agreement with Plaintiff, and Mr. Armstrong
now seeks authorization from this Court to receive the
remaining $25, 179.50 of the funds pursuant to a separate
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 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 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 (10th Cir. 2006).
§ 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. Id. at 807. Importantly, there is no
presumption that a fee equal to or below the twenty-five
percent (25%) cap is reasonable. Id. Rather, it is
simply a Congressionally created “boundary line”
and “the attorney for the successful claimant must show
that the fee sought is reasonable for the services
determine reasonableness, courts consider factors including:
(1) whether the attorney's representation was
substandard; (2) whether the attorney was responsible for any
delay in the 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. at 808. A
court may require the claimant's attorney to submit a
record of the hours spent representing the claimant and a
statement of the attorney'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 Michael Armstrong's legal
representation of Plaintiff was more than adequate; that Mr.
Armstrong obtained a fully favorable decision without
delaying the proceedings before this Court; and that 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 fee is
below the twenty-five percent (25%) of past-due benefits
permitted by Plaintiff's contingency agreement,
see Doc. 35-1, p. 24, and that it is proportionate
given the amount of time (33.4 hours) Mr. Armstrong and his
firm expended in this case. The Court notes that the
requested fee translates to an hourly rate of roughly
$753.88, which is higher than average for fees 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). However, the
hourly rate is in line with the award authorized in
Threadgill v. Berryhill, CIV 16-0287 JHR (Doc.
33) (awarding $13, 762.50 for 18.45 hours or $746.00 per
hour). And, having performed its “independent
check” duties, the Court finds the requested award to
be both appropriate and reasonable.
IS, THEREFORE, ORDERED that Plaintiff's Motion
for attorney fees under § 406(b) is
GRANTED. The Court hereby authorizes an
award of attorney fees in the amount of $25, 179.50, and
directs the Commissioner to pay this award directly to
Plaintiffs attorney from the amount of past-due benefits
withheld for this purpose. Plaintiffs attorney shall
thereupon refund to Plaintiff the EAJA award of $6, 523.30.
 For purposes of clarification, the
Court notes that Defendant declined to take a position on the