Ruybal v. Social Security Administration
ORDER by Magistrate Judge William P. Lynch granting 32 Motion for Attorney Fees; granting nunc pro tunc 33 Motion for Extension of Time to File Response/Reply. (mej)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CV 14-33 WPL
NANCY A. BERRYHILL, Commissioner
of the Social Security Administration,
ORDER GRANTING MOTION FOR ATTORNEYS’ FEES
Alan Ruybal filed a motion for attorneys’ fees pursuant to 42 U.S.C. § 406(b). (Doc. 3.)
The Social Security Administration (“SSA”) filed a motion to extend time to file its response
(Doc. 33), which is granted nunc pro tunc, but takes no position on this motion as it is not the
true party in interest (Doc. 34); see Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002). For the
reasons explained below, I grant Ruybal’s motion.
Ruybal filed a claim for disability insurance benefits. After his claim was denied at all
administrative levels, he brought an action for judicial review, represented by the Michael D.
Armstrong Law Office. Concluding that the administrative law judge (“ALJ”) committed legal
error, I remanded the matter to the SSA for a rehearing. Ruybal then filed an opposed motion for
attorneys’ fees under the Equal Access to Justice Act (“EAJA”). (Doc. 25.) After reviewing
briefing on the matter, I granted the motion and awarded $8,103.80 in attorney fees. (Doc. 31.)
The EAJA fee was subject to an offset under the U.S. Treasure Offset Program, 31 U.S.C.
§ 3716(c)(3)(B). (Doc. 39 at 2; Doc. 39-1 at 3.)
On remand, the ALJ issued a fully favorable decision dated November 20, 2015, finding
that Ruybal has been disabled since December 8, 2006. (Doc. 37-1 at 1.) After some confusion,
Armstrong received confirmation from the SSA that it withheld $8,525.78 from Ruybal’s
payments, “which represents the balance of 25 percent of the past-due benefits for Alan T
Ruybal and family, in anticipation of direct payment for an authorized attorney s fee.” (Doc. 39-1
On May 12, 2016, the Michael D. Armstrong Law Office filed the instant motion seeking
attorneys’ fees pursuant to 42 U.S.C. § 406(b). Noting that counsel was awarded $6,000.00 in
fees for work performed before the SSA1, the firm now seeks $8,525.78 under § 406(b) for
services rendered in the United States District Court. (Doc. 39 at 1.)
Attorneys’ fees may be deducted from a successful social security claimant’s award of
past-due benefits. Separate subsections of 42 U.S.C. § 406 authorize fee awards for
representation before the SSA and in court, allowing attorneys to receive fees for their work in
both settings. See 42 U.S.C. § 406(a), (b). Fees awarded for representation before the United
States District Court are not necessarily limited by the amount of fees awarded by the
Commissioner for representation before the SSA. Wrenn ex rel. Wrenn v. Astrue, 525 F.3d 931,
937 (10th Cir. 2008).
For representation in court, courts may award fees under § 406(b) when, as in this case,
“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, 496 (10th Cir. 2006). The statute limits a fee award for representation before a
Counsel was paid a $5,909.00, which reflects the full $6,000.00 minus the $91.00 user fee.
(Doc. 39-1 at 1.)
court to 25% of the claimant’s past-due benefits. 42 U.S.C. § 406(b)(1)(A). However, if fees are
awarded under both EAJA and § 406(b), the attorney must refund the lesser award to the
claimant. McGraw, 450 F.3d at 497 n.2 (10th Cir. 2006).
While § 406(b) permits contingency fee agreements, it requires the reviewing court to act
as “an independent check” to ensure that fees awarded pursuant to such agreements are
reasonable. Gisbrecht, 535 U.S. at 807. Fee agreements are flatly unenforceable to the extent that
they provide for fees exceeding 25% of past-due benefits, but fees may be unreasonable even if
they fall below this number, and there is no presumption that fees equating to 25% of past-due
benefits are reasonable. Id. at 807 n.17. The attorney seeking fees bears the burden of
demonstrating the reasonableness of the fee. Id. at 807.
The reasonableness determination is “based on the character of the representation and the
results the representative achieved.” Id. at 808. If the attorney is responsible for delay, the fee
may be reduced so that the attorney does not profit from the accumulation of benefits while the
case was pending in court. Id. Such a reduction also protects the claimant, as fees paid under
§ 406(b) are taken from, and not in addition to, the total of past-due benefits. 42 U.S.C.
§ 406(b)(1)(A). The fee may also be reduced if the benefits are large in comparison to the
amount of time spent on the case. Gisbrecht, 535 U.S. 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
lawyer’s normal hourly billing rate for noncontingent-fee cases. Id.
The statute does not contain a time limit for fee requests. However, the Tenth Circuit 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 (citation omitted).
The $8,525.78 sought by the Michael D. Armstrong Law Office represents 14.67% of the
total past-due benefits ($6,000.00 for services before the SSA and $8,525.89 remaining, for the
balance of 25% of past-due benefits), and thus it does not exceed the statutory cap. The firm’s
fee agreement with Ruybal entitles it to no more than 25% of all past-due benefits. (Doc. 32-2 at
10.) The sum of the $5,909.00 fee the Michael D. Armstrong Law Office collected under §
406(a) for representation before the SSA and the amount sought here totals 25% of the past-due
Michael Armstrong asserts that neither he nor his law firm performs hourly work (Doc.
32-2 at 15), but notes that a total of 42.67 hours of attorney time were spent on representing
Ruybal before this Court (id. at 6-8). The fee requested under § 406(b) thus amounts to
approximately $199.81 per hour, which is within the range of fees approved in this District in the
past. See, e.g., Faircloth v. Barnhart, 398 F. Supp. 2d 1169, 1175-76 (D.N.M. 2005). The
affidavits also discuss the Michael D. Armstrong Law Office’s extensive experience and
expertise in social security work.
I recognize the inherent risk that this and other firms take when regularly representing
social security claimants on a contingency basis. See Faircloth, 398 F. Supp. 2d at 1173 (citation
omitted) (noting that perhaps 35% of claimants appearing at the federal court level will obtain
benefits). Courts are generally more inclined to accept even “an amount that would seem
untenable in an hourly rate arena” when accounting for such risk of loss. See id. at 1174.
Importantly, I see no evidence of delay in these proceedings. Approximately fifteen
months passed between the time that Ruybal filed his complaint in this Court and the time that I
remanded the case to the SSA. During that time, the Michael D. Armstrong Law Office did not
request any extensions on Ruybal’s behalf.
Having reviewed several recent awards of attorneys’ fees under § 406(b), I find that the
fee award requested here is not so outside the norm as to be unreasonable. See Feldbusch v.
Astrue, No. CV 10-1081 MV/KBM, Doc. 32 (D.N.M. Feb. 7, 2014) (awarding $8,604.50 in
§ 406(b) attorneys’ fees for 20.4 hours of work yielding approximately $74,418 in past-due
benefits); Marlin v. Astrue, No. CV 10-0049 DJS, Doc. 27 (D.N.M. May 31, 2011) (awarding
$9000.00 in § 406(b) attorneys’ fees for 20.4 hours of work yielding $81,475 in past-due
Having considered the above factors, I conclude that the request for attorneys’ fees is
For the foregoing reasons, the motion for attorneys’ fees in the amount of $8,525.78
pursuant to 42 U.S.C. § 406(b) is GRANTED.
IT IS SO ORDERED.
William P. Lynch
United States Magistrate Judge
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