Lopez v. Social Security Administration
ORDER by Magistrate Judge Kirtan Khalsa granting 34 Motion for Attorney Fees. (kc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
Civ. No. 14-735 KK
CAROLYN W. COLVIN, Acting Commissioner
of the SOCIAL SECURITY ADMINISTRATION,
ORDER GRANTING MOTION FOR ATTORNEY FEES
THIS MATTER comes before the Court on Plaintiff’s Motion for Order Authorizing
Attorney Fees Pursuant to 42 U.S.C. § 406(B) and Supporting Memorandum (“Motion”), filed
December 8, 2016. (Doc. 34.) The Commissioner filed a Response on December 14, 2016, and
stated that although it is not a party to § 406(b) fee awards and generally takes no position on
such petitions, it has no objection to Plaintiff’s Motion. (Doc. 35.) Having considered the
Plaintiff’s Motion, the Commissioner’s Response, and the relevant law, the Court finds
Plaintiff’s Motion is well taken and is GRANTED.
Eliseo Lopez instituted an action in this Court seeking judicial review of his denied
claims for disability and supplemental security income benefits. The Court concluded that the
Administrative Law Judge (“ALJ”) had failed to apply the correct legal standards, and the matter
was remanded to the Social Security Administration (“SSA”) for rehearing.
subsequently filed an opposed motion for attorneys’ fees under the Equal Access to Justice Act
(“EAJA”), which the Court granted, and he was awarded $5,785.00 in attorney fees. (Doc. 33.)
On remand, the ALJ issued a fully favorable decision dated June 29, 2016, finding that
Mr. Lopez has been disabled since May 17, 2011. (Doc. 34 at Ex. A.) A Notice of Award was
subsequently sent to Mr. Lopez on September 4, 2016, stating that the SSA had withheld
$17,911.50 to cover Mr. Lopez’s attorney fees. (Doc. 34 at Ex. B.) Mr. Lopez noted that the
SSA awarded his counsel a fee of $6,000, which reflected the fee contract he entered into with
counsel for work performed before the Administration. (Doc. 37 at Ex. B.) However, he entered
into a separate contingency fee contract for legal services in the United States District Court, and
he now seeks an order authorizing fees pursuant to 42 U.S.C. § 406(b) in the amount of
$11,911.50 for the work his counsel performed before this Court (Id.)
Attorneys’ fees may be deducted from a successful social security claimant’s award of
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).
For representation before the SSA, the statute permits an attorney to file a fee petition or
a fee agreement with the agency “whenever the Commissioner . . . makes a determination
favorable to the claimant . . . .” 42 U.S.C. § 406(a). There is no express limit to the fees an
attorney may seek and receive in a petition; the Commissioner must only “fix . . . a reasonable
fee,” id., while considering several factors. See 20 C.F.R. § 404.1725(b) (2015) (outlining the
factors); see also Gisbrecht, 535 U.S. at 794 (explaining the fee petition process). For fees
received pursuant to a fee agreement for work before the SSA, attorneys may currently receive a
maximum award of the lesser of $6,000 or 25% of the past-due benefits.
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
court to 25% of the claimant’s past-due benefits. 42 U.S.C. § 402(a)(1)(A). Separate awards of
attorney fees for representation before the SSA and in court – for example, fees pursuant to the
EAJA and § 406(b) – are not limited to an aggregate of 25% of past-due benefits. Wrenn v.
Astrue, 525 F.3d 931, 936-38 (10th Cir. 2008). 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
Although the statute initially set a maximum amount of $4,000, it also gives the Commissioner the authority to
increase this amount. 42 U.S.C. § 406(a)(2)(A). Effective June 22, 2009, the Commissioner increased the
maximum amount to $6,000. Maximum Dollar Limit in the Fee Agreement Process, 74 Fed. Reg. 6080 (Feb. 4,
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 t 505 (citation omitted).
Mr. Lopez’s counsel’s fee request is reasonable. First, Mr. Lopez’s counsel filed the fee
request within a reasonable time.2 Second, the fee agreement entered into between Mr. Lopez
and the Michael Armstrong Law Firm entitles it to no more than 25% of all past-due benefits,
and the fees sought do not exceed the amount agreed to and permitted. (Doc. 34 at Ex. D.)
Third, there is no evidence that counsel delayed in the proceedings before this Court. Fourth,
counsel’s representation was more than adequate and yielded a fully favorable decision. (Doc. 34
at Ex. E.) Last, counsel’s fee request of $11,911.50 is not disproportionately large in comparison
to the amount of time spent on the case (30.75 hours or $387.37 per hour), and is in line with
other awards authorized in this District under 406(b). See e.g., Newman v. Colvin, USDC NM
Civ. No. 13-914 LH/KK (Doc. 40) (awarding $10,408.00 for 34.84 hours or $298.74 per hour);
Recio v. Colvin, USDC NM Civ. No. 13-828 WPL (Doc. 28) (awarding $9,968.00 for 30.75
The Notice of Award is dated September 16, 2016, and Mr. Lopez filed the fee request on December 8, 2016.
(Doc. 34, Ex. B.)
hours or $324.16 per hour); Martinez v. Colvin, USDC NM Civ. 12-1181 JCH/KBM (Doc. 30)
(awarding $11,666.50 for 37.4 hours or $311.84 per hour); and Gallegos v. Colvin, USDC Civ.
No. 12-321 SMV (Doc. 32) (awarding $10,000 for 16.2 hours or $617.28 per hour). Thus, the
Court’s independent check finds the requested award to be both appropriate and reasonable.
IT IS THEREFORE ORDERED that Plaintiff’s Motion (Doc. 34) is GRANTED. The
Court hereby authorizes $11,911.50 in attorney fees for legal services rendered in the United
States District Court, to be paid by the Social Security Administration.
IT IS FURTHER ORDERED that in accordance with Gisbrecht, 535 U.S. at 795,
counsel shall refund to Mr. Lopez the EAJA fees previously awarded.
United States Magistrate Judge
Presiding by Consent
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