Salazar v. Social Security Administration
ORDER granting 27 Motion for Attorney Fees by Magistrate Judge Kevin R. Sweazea.(sls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JERRY ROSS SALAZAR,
NANCY A. BERRYHILL, Acting Commissioner
of the Social Security Administration,1
ORDER GRANTING § 406(b) ATTORNEY FEES
THIS MATTER is before the Court on Plaintiff’s Motion for an award of $19,442.25
in attorney fees under 42 U.S.C. § 406(b)(1). [Doc. No. 27]. Defendant declined to take a
position with regard to the reasonableness of the requested award. [Doc. No. 29]. Being fully
advised in the premises, the Court finds that Plaintiff’s Motion is well-taken and should be
Plaintiff instituted an action in this Court seeking judicial review of Defendant’s denial of
his application for Social Security disability benefits. This Court reversed the decision of the
Commissioner and remanded for a new hearing and awarded EAJA fees in the amount of
$5,191.80 and costs in the amount of $400.00. See Doc. Nos. 20 and 26. Following this Court’s
remand, the Social Security Administration found Plaintiff to be disabled and awarded
$101,770.00 in past due benefits. The Administration should have withheld twenty-five percent
of those benefits, $25,442.50, in the event that Plaintiff’s counsel were to bring a claim for
attorney fees pursuant to the retainer agreement but, in error, only withheld $6,000. [Doc. No.
Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal
Rules of Civil Procedure, Nancy A. Berryhill is therefore substituted for Acting Commissioner Carolyn W. Colvin
as the defendant in this suit.
27-1, p. 18]. The $6,000 was paid to Michael Armstrong on January 26, 2017, and the remaining
$19, 442.25 was released to Plaintiff in error. [Id.]. Plaintiff’s counsel now seeks authorization
from this Court for an award of compensation for legal services in an amount equaling twentyfive percent of Plaintiff’s past due benefits less the $6,000 he already received.2
When a 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 past-due benefits. Wrenn ex rel. Wrenn v. Astrue,
525 F.3d 931, 933-34 (10th Cir. 2008). If fees are awarded under both 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 493-96 (10th Cir. 2006).
Although § 406(b) does not prohibit contingency fee agreements, it renders them
unenforceable to the extent that they provide for fees exceeding 25% of the past-due benefits.
Gisbrecht v. Barnhart, 535 U.S. 798, 807 (2002). 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% of the
past-due benefits because there is no presumption that 25% is reasonable. Id. at 807 n. 17.
Counsel has the burden of demonstrating the reasonableness of the fees. Id. at 807. The
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
Plaintiff’s attorney, Michael Armstrong, briefly notes that $25,442.50 minus $6,000 equals $19, 442.50, rather than
$19,442.25. [Doc. No. 27, p. 2, n. 1]. However, as Mr. Armstrong does not belabor the twenty-five cent
discrepancy, the Court will consider the Administration’s calculation of $19,442.25 to be the correct balance.
include: (1) whether the attorney’s representation was substandard; (2) whether the attorney was
responsible for any delay in resolution of the case; and (3) 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 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, 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.
In this case, the Court finds that the legal representation by Michael D. Armstrong of
Plaintiff was more than adequate, and he obtained a fully favorable decision. Counsel did not
delay the proceedings before this Court. The instant Motion was filed within a reasonable time
after Plaintiff received notice of entitlement to past-due benefits. The Court further finds that the
requested fee is equal to the remainder of the 25% permitted by the retainer agreement and
proportionate given the amount of time (27.42 hours) spent on the case. The requested attorney
fees would therefore be in line with other fee awards authorized in this District under 406(b). See
e.g., Marquez v. Astrue, CIV 10-1165 CG (Doc. 30) (awarding $10,105 for 18.9 hours, or
$529.00 per hour); Dimas v. Astrue, CIV 03-1157 RHS (Doc. 34) (awarding $17,000 for 38.26
hours or $444.23 per hour). Having performed its “independent check” duties, the Court finds
the requested award to be both appropriate and reasonable.
IT IS, THEREFORE, ORDERED that Plaintiff’s Motion for attorney fees under §
406(b) is granted. The Court hereby authorizes $19,442.25 in attorney fees for legal services
rendered in United States District Court, to be paid by the Social Security Administration.
Plaintiff’s counsel will then reimburse Plaintiff the EAJA award of $5,191.80.
UNITED STATES MAGISTRATE JUDGE
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