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Quezada v. Saul

United States District Court, D. New Mexico

December 30, 2019

ANDREW M. SAUL,[1] Commissioner of the Social Security Administration, Defendant.



         THIS 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.

         I. Procedural History

         Mr. 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.

         During 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.

         The ALJ 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 (D.N.M. 2015).

         On 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.

         Mr. Quezada's counsel, Michael D. Armstrong,[2] 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.

         II. Standard

         Section 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.[3] If the Court awards both EAJA fees and § 406 fees, however, counsel must refund the smaller amount to the claimant. Id.

         Under 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.

         “The 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 495-96.

         In 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 ...

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