United States District Court, D. New Mexico
ELFEGO P. VALDEZ JR., Plaintiff,
ANDREW SAUL, Commissioner of the Social Security Administration, Defendant.
ORDER AUTHORIZING ATTORNEY FEES PURSUANT TO 42 U.S.C.
HONORABLE CARMEN E. GARZA CHIEF UNITED STATES MAGISTRATE
MATTER is before the Court on Plaintiff Elfego P.
Valdez' Motion for Order Authorizing Attorney Fees
Pursuant to 42 U.S.C. § 406(B) and Supporting
Memorandum (the “Motion”), (Doc. 21), filed
August 9, 2019. Defendant Commissioner Andrew Saul did not
file a response to Plaintiff's Motion and the time for
doing so has now passed. In the Motion, Plaintiff's
attorney, Michael D. Armstrong, moves the Court for an order
authorizing attorney fees in the amount of $22, 497.13 for
legal services rendered before the Court. (Doc. 21 at 1).
Plaintiff states he conferred with Defendant Commissioner
prior to filing his Motion and Defendant “takes no
position on this Motion at [the] time of filing.”
Id. at 2. Having reviewed the Motion, the relevant
law, and being otherwise fully advised in the premises, the
Court finds Plaintiff's Motion is well-taken and shall be
instituted an action in this Court on May 11, 2018, seeking
judicial review of the Commissioner's denial of his
applications for disability insurance benefits and
supplemental security income. (Doc. 1). On November 19, 2018,
this Court granted Plaintiff's request for relief, and
remanded the case to the Commissioner for further
proceedings. (Docs. 18). Plaintiff's attorney was
subsequently awarded attorney fees in the amount of $5,
748.60 pursuant to the Equal Access to Justice Act
(“EAJA”). (Doc. 20).
remand, Defendant Commissioner determined Plaintiff was
disabled, entered a fully favorable decision, and awarded
Plaintiff past-due benefits in the amount of $113, 988.50.
(Doc. 21 at 1-2, 4). Defendant Commissioner advised Plaintiff
on July 30, 2019 that $28, 497.13 was being withheld from
Plaintiff's total-benefit payment pending an award of
attorney fees pursuant to 42 U.S.C. § 406(B).
Id. at 2. Plaintiff's attorney explains that
pursuant to an offset under the Treasury Offset Program, 32
U.S.C. § 3716(c)(3)(B) (2006), he never received any
EAJA fees for his work performed on this case. Id.
Plaintiff's attorney now seeks an award of $22, 497.13,
approximately 20% of the total past-due benefits awarded to
Plaintiff, for his work before the Court. Id. at 5.
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.” 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. 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 fee cases. Id. The statute does not
specify a deadline for requesting fees. See 42
U.S.C. § 406(b). The Tenth Circuit Court of
Appeals, however, has held that a request “should be
filed within a reasonable time of the Commissioner's
decision awarding benefits.” McGraw, 450 F.3d
case, the Court finds that Mr. Armstrong's representation
of Plaintiff was more than adequate. First, Mr. Armstrong
obtained a fully favorable decision for Plaintiff upon
remand. Next, the instant motion was filed within two months
of Plaintiff receiving notice that he was entitled to
past-due benefits, an amount of time the Court finds to be
reasonable. (Doc. 21-1, Ex. A). Moreover, the requested fee
for services performed in connection with this case is within
the 25-percent cap imposed by § 406(b). The requested
fee is also not disproportionately large in comparison to the
amount of time spent on the case, given Mr. Armstrong's
experience working on Social Security cases. (Doc. 21-1, Ex.
Mr. Armstrong documented 28.6 total hours in representing
Plaintiff before this Court. (Doc. 21-1, Ex.C). Awarding Mr.
Armstrong the requested $22, 497.13 would result in an hourly
fee of $787 for work performed before this Court. Considering
Mr. Armstrong'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, Civ. 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).
IS THEREFORE ORDERED that Plaintiffs Motion for
Order Authorizing Attorney Fees Pursuant to 42 U.S.C. §
406(B) and Supporting Memorandum, (Doc. 21), is
GRANTED. The Social Security Administration
is therefore directed to pay Plaintiffs counsel $22, 497.13
for legal services performed before this Court.