United States District Court, D. New Mexico
ORDER GRANTING MOTION FOR ATTORNEY FEES PURSUANT TO
42 U.S.C. § 406(b)
FASHING, UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court upon attorney Michael D.
Armstrong's Motion for Order Authorizing Attorney Fees
Pursuant to 42 U.S.C. § 406(b) and Supporting
Memorandum, filed on August 26, 2019. Doc. 19. The motion
seeks $27, 528.75 in attorney fees for legal services
rendered before the Court. Id. at 1. The
Commissioner states that he is not a party to § 406(b)
fee awards and defers to the Court's discretion on the
matter. Doc. 30 at 1, 4. Having reviewed the briefing, the
record, and the applicable case law, and being otherwise
fully advised in the premises, I find the motion well taken
and will GRANT it IN PART.
Quezada filed his initial application for Disability
Insurance Benefits (“DIB”) on October 29, 2008.
AR 137-43. After the Social Security Administration
(“SSA”) denied his claims initially and on
reconsideration, Mr. Quezada requested and received a hearing
before an Administrative Law Judge (“ALJ”), at
which Mr. Quezada testified with the assistance of an
interpreter. AR 28-53, 65-72, 79-81, 82-83. The ALJ issued an
unfavorable decision and Mr. Quezada requested review by the
Appeals Council, which denied the request on September 20,
2012. AR 1-8, 9-27, 134-35. Mr. Quezada appealed the
Commissioner's decision to this Court. See Quezada v.
Social Security Administration, 1:12-cv-01204-MCA-WPL
(D.N.M. 2012). After almost a year, the Commissioner agreed
to remand the case pursuant to sentence four of § 205(g)
of the Social Security Act. AR 561-62.
the pendency of the appeal, Mr. Quezada applied for
supplemental security income (“SSI”). AR 567. The
state agency that reviewed Mr. Quezada's SSI application
issued a favorable determination, finding Mr. Quezada
disabled beginning April 1, 2013. Id. Subsequently,
the Appeals Council issued an order remanding the DIB case to
an ALJ for further proceedings in accordance with the order
of the District Court. AR 567-69. The Appeals Council
affirmed the state agency determination that Mr. Quezada was
disabled beginning April 1, 2013 but ordered that “the
period prior to April 1, 2013 requires further administrative
proceedings.” AR 567.
held a second hearing on November 5, 2014, in which Mr.
Quezada again testified with the assistance of an
interpreter. AR 523, 540-59. The ALJ issued a second
unfavorable decision which became the final decision of the
Commissioner. AR 517-39. Mr. Quezada once again appealed the
Commissioner's final decision to this Court, which
remanded the case a second time “for consideration of
the sole issue of the date of onset of Plaintiff's
disability . . . .” AR 820-21. See Quezada v.
Social Security Administration, 1:15-cv-00282-LAM
remand, a different ALJ held a brief hearing in which Mr.
Quezada appeared and was assisted by an interpreter. AR
762-69. A vocational expert was also present. AR 762, 764.
The hearing, however, was rescheduled because a medical
expert was not present. AR 766-68, 770- 99. Mr. Quezada was
not present during the third and final hearing, but he was
represented by counsel. AR 772. The hearing specifically
focused on the period from March 10, 2008 to March 31, 2013.
AR 772. The ALJ issued an unfavorable decision, and Mr.
Quezada appealed the decision to this Court. Doc. 1. AR
732-61. It is this third decision by the second ALJ that
formed the basis for Mr. Quezada's third appeal. This
Court found that the ALJ erred because the VE did not
consider that Mr. Quezada could not speak English and did not
resolve this fact with the language requirements in the DOT.
Accordingly, the Court remanded the case for an immediate
award of benefits. Doc. 25. The Social Security
Administration awarded Mr. Quezada full benefits from
September 2008 forward in the amount of $110, 115.00 for past
due benefits and continued monthly benefits in the amount of
$813.00. Doc. 29-1 at 15-20.
Quezada's counsel, Michael D. Armstrong, represented him
during the third and final appeal to this Court. This Court
awarded Mr. Armstrong attorney fees pursuant to the Equal
Access to Justice Act (“EAJA”). Docs. 27, 28.
Because Mr. Quezada was awarded benefits on remand, Mr.
Armstrong now requests that he be awarded $27, 528.75 (25% of
$110, 115.00) as attorney fees for legal services rendered
before this Court for the third appeal. Doc. 29 at 1.
406(a), title 42, United States Code, governs fees for
representation at administrative proceedings, and §
406(b) governs fees for representation in court. McGraw
v. Barnhart, 450 F.3d 493, 498 (10th Cir. 2006).
“[E]ach authority sets fees for the work done before
it; thus, the court does not make fee awards for work at the
agency level, and the Commissioner does not make fee awards
for work done before the court.” Id. Attorneys
representing Social Security claimants in court may seek fees
for their work under both EAJA and under § 406.
Id. at 497. If the Court awards both EAJA fees and
§ 406 fees, however, counsel must refund the smaller
amount to the claimant. Id.
42 U.S.C. § 406(b)(1),
Whenever a court renders a judgment favorable to a claimant
under this subchapter who was represented before the court by
an attorney, the court may determine and allow as part of its
judgment 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 by reason of such judgment.
tenor of 406(b) is permissive rather than mandatory. It says
that the court may make such an award, not that such an award
shall be made.” Whitehead v. Richardson, 446
F.2d 126, 128 (6th Cir. 1971). Traditionally, an award of
attorney fees is a matter within the sound discretion of the
court. Id. “[T]he Social Security Act (SSA),
42 U.S.C. § 406(b)(1), allows the district court to
award attorney's fees to claimant's counsel when the
court remands a Title II Social Security disability case for
further proceedings and the Commissioner ultimately
determines that the claimant is entitled to an award of
past-due benefits.” McGraw, 450 F.3d at
Gisbrecht v. Barnhart, the Supreme Court rejected
the lodestar method of calculating attorney fees for Social
Security cases, “under which the number of hours
reasonably devoted to each case was multiplied by the
reasonable hourly fee.” 535 U.S. 789, 798-99 (2002).
The Supreme Court instead concluded that Congress designed
§ 406(b) “to control, not displace, fee agreements
between Social Security benefit claimants and their
counsel.” Id. at 793. Courts should review fee
arrangements “as an independent check, to assure that
they yield reasonable results in particular ...