United States District Court, D. New Mexico
ORDER GRANTING APPLICATION FOR ATTORNEY FEES
HONORABLE CARMEN E. GARZA, CHIEF UNITED STATES MAGISTRATE
MATTER is before the Court on Plaintiff Judith M.
Lucero's Motion for Order Authorizing Attorney Fees
Pursuant to 42 U.S.C. § 406(B) and Supporting
Memorandum (the “Motion”), (Doc. 22), filed
October 25, 2019. Defendant Andrew Saul did not file a
Response to the Motion and the time for doing so has now
passed. See D.N.M.LR-CIV 7.4(a) (“A response
must be served and filed within fourteen (14) calendar days
after service of the motion.”). In accordance with the
local rules, Defendants' failure to respond in opposition
to Plaintiff's Motion is viewed as consent for the Court
to grant the Motion. See D.N.M.LR-CIV 7.1(b)
(“The failure of a party to file and serve a response
in opposition to a motion within the time prescribed for
doing so constitutes consent to grant a motion.”).
Having reviewed Plaintiff's Motion, 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.
Lucero instituted an action in this Court on February 24,
2017, seeking judicial review of Defendant's denial of
her application for Social Security disability benefits.
(Doc. 1). On November 9, 2017, this Court granted Ms.
Lucero's request for relief, and remanded the case to the
Commissioner for further proceedings. (Doc. 18).
Subsequently, Ms. Lucero's counsel, Michael D. Armstrong,
was awarded attorney fees in the amount of $5, 815.32
pursuant to the Equal Access to Justice Act
(“EAJA”). (Doc. 21).
remand, on January 17, 2019, Defendant entered a favorable
decision for Ms. Lucero, determining Ms. Lucero to have been
disabled beginning on June 14, 2010, and awarding her
past-due benefits. (Doc. 22-1, Exhibit A). Defendant advised
Ms. Lucero on June 4, 2019, that $26, 606.38 was being
withheld from her total benefit amount pending an award of
attorney fees pursuant to 42 U.S.C. § 406(B). (Doc.
22-1, Exhibit B). Defendant stated he withheld 25 percent of
past due benefits for a potential award of attorney fees
pursuant to 42 U.S.C. § 406(b), which in this case
totals $26, 606.38. Id. After Defendant's
decision to award past-due benefits to Ms. Lucero, Ms.
Lucero's counsel was awarded a fee of $10, 000, which
reflected the fee contract entered into between her and her
counsel for work performed.
Ms. Lucero's counsel requests that the Court authorize
payment of $16, 606.38 ($26, 606.38 minus $10, 000.00) as
attorney fees for legal services provided, which is within 25
percent of total back pay benefits. Furthermore, Ms.
Lucero's counsel asks the Court to require him to
reimburse Ms. Lucero $5, 815.32, which is the amount of the
EAJA fees previously awarded.
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.
the Court finds that Ms. Lucero's counsel's
representation of her was adequate. Counsel obtained a
favorable decision for Ms. Lucero, and did not delay the
proceedings before this Court in any way. The instant motion
was filed within five months of Ms. Lucero's receipt of
the Notice of Award, which informed her she was entitled to
past-due benefits. (Doc. 22-1, Exhibit 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 Ms.
Lucero's counsel's experience working on Social
Security cases. (Doc. 22-1, Exhibit E). Ms. Lucero's
counsel documented 29.67 total attorney hours in representing
Ms. Lucero before this Court. (Doc. 22 at 4). Awarding
counsel the requested $16, 606.38 would result in an hourly
fee of $560.00 for attorney work performed before this Court.
Considering Ms. Lucero'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, 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. 22), be
GRANTED. Ms. Lucero's counsel is ...