Nevarez v. Social Security Administration
ORDER by Magistrate Judge Lourdes A. Martinez granting 32 Motion for Attorney Fees (jca)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
FRANKIE ROSALES NEVAREZ,
CIV No. 15-0020 LAM
NANCY A. BERRYHILL, Acting Commissioner
of the Social Security Administration,
ORDER GRANTING PLAINTIFF’S MOTION FOR SECTION 406(b) FEES
THIS MATTER is before the Court on Plaintiff’s Motion for Order Authorizing
Attorney Fees Pursuant to 42 U.S.C. § 406(b) and Supporting Memorandum (Doc. 32)
(hereinafter “motion”), filed December 8, 2016, requesting attorney fees in the amount of
$8,103.75. On December 27, 2016, Defendant filed a response to the motion, stating that “the
Commissioner is not a party to § 406(b) fee awards and generally takes no position on such
petitions. However, to the extent the Court requires a response, the Commissioner has no objection
to the petition in this case.” [Doc. 33 at 1]. Plaintiff did not file a reply to Defendant’s response
and, on January 5, 2017, filed a notice that briefing of the motion was complete. [Doc. 34].
Having considered the motion, response, relevant law, the record in this case, and being otherwise
fully advised, the Court finds that the motion should be GRANTED.
Plaintiff filed his complaint in this action on January 9, 2015 (Doc. 1) and his motion to
reverse and remand (Doc. 19) on August 25, 2015. After two extensions of the time to file a
response to the motion to remand (Docs. 21, 24), Defendant instead filed an unopposed motion to
remand on December 16, 2015 (Doc. 25). Defendant’s motion was granted by this Court on
January 5, 2016.
On March 25, 2016, the Court granted Plaintiff’s motion for
attorney’s fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (hereinafter,
“EAJA”), in the amount of $4,143.52. [Doc. 31]. On June 21, 2016, Plaintiff received a fully
favorable decision from the Social Security Administration (hereinafter, “SSA”). [Doc. 32-1
at 1]. A September 4, 2016 “Notice of Award” states that Plaintiff would be paid disability
benefits from October 2011, forward. Id. at 15. The notice also indicated that the SSA withheld
$14,103.75, or 25%, from Plaintiff’s past due benefits of $56,415.00 to pay Plaintiff’s counsel.
Plaintiff’s counsel states that, pursuant to a prior fee agreement with Plaintiff, he has
already been awarded a fee in the amount of $6,000.00 by the SSA for time spent handling
Plaintiff’s case before the agency, pursuant to 42 U.S.C. § 406(a). [Doc. 32 at 5]. Therefore,
pursuant to 42 U.S.C. § 406(b), Plaintiff’s counsel requests attorney’s fees in the amount of
$8,103.75 for time spent representing Plaintiff before this Court. Id. Together, the two fee
awards equal 25% of the $56,415.00 of past-due benefits awarded to Plaintiff by the SSA.
Plaintiff’s counsel is entitled to an award of attorney’s fees pursuant to 42 U.S.C. § 406(b)
even though Plaintiff’s past-due benefits were obtained following remand to the Commissioner.
See McGraw v. Barnhart, 450 F.3d 493, 496 (10th Cir. 2006) (“[W]hen 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[,] [w]e conclude that
§ 406(b)(1) does permit an award of counsel fees under these circumstances[.]”). The Court must
ensure that the attorney’s fees awarded to Plaintiff’s counsel pursuant to 42 U.S.C. § 406(b)(1) are
See Wrenn v. Astrue, 525 F.3d 931, 938 (10th Cir. 2008).
attorney’s fee award under Section 406(b) for court representation may not exceed twenty five
percent of the past-due benefits awarded to Plaintiff, payable “out of, and not in addition to, the
amount of such past-due benefits.” See 42 U.S.C. § 406(b)(1)(A).
Here, the parties state that the amount of the fee award sought by Plaintiff’s counsel under
Section 406(b), i.e., $8,103.75, does not exceed twenty-five percent of the past-due benefits
awarded to Plaintiff. See [Doc. 33 at 3] and [Doc. 34 at 4]. The record indicates that Plaintiff’s
counsel provided quality representation to Plaintiff and was not responsible for any delay in the
resolution of this matter, and that Plaintiff’s counsel expended at least 22.04 hours representing
Plaintiff before this Court. See [Doc. 32-1 at 20]. The record further indicates that Plaintiff and
his counsel entered into a contingent fee agreement that provides that the attorney’s fees for
Plaintiff’s counsel would be twenty-five percent (25%) of any past-due benefits awarded either by
the Court or by the SSA following remand by the Court. Id. at 21. The Court finds that the
amount of past-due benefits awarded to Plaintiff was not so large in comparison to the time
expended by his counsel as to require a further reduction of fees. See Gisbrecht, 535 U.S. at 808
(explaining that the court should consider whether “the benefits are large in comparison to the
amount of time counsel spent on the case”). In addition, the Court finds that there has been no
undue delay in the filing of this motion for Section 406(b)(1) fees and it was filed within a
reasonable time after the Commissioner’s decision awarding past-due benefits. See McGraw,
450 F.3d at 505 (“A motion for award of fees under § 406(b)(1) should be filed within a reasonable
time of the Commissioner’s decision awarding benefits.”) (citation omitted).
Commissioner’s decision awarding past-due benefits was issued September 4, 2016, and this
motion was filed December 8, 2016, which the Court finds reasonable. See id. (stating that
decisions on motions for Section 406(b) fees “are committed to the district court’s sound
discretion”) (citation omitted); see also Early v. Astrue, No. 07-6294, 295 Fed. Appx. 916, 918-19,
2008 WL 4492602 (10th Cir. Oct. 8, 2008) (unpublished) (upholding the district court’s decision
that a fifteen-month delay in filing a motion for Section 406(b) fees after the Commissioner’s
decision awarding past-due benefits was unreasonable).
Finally, the Court finds that the attorney’s fees in the amount of $8,103.75 requested by
Plaintiff’s counsel pursuant to 42 U.S.C. § 406(b) are reasonable. Because the amount of the
attorney’s fees awarded Plaintiff pursuant to the EAJA, i.e., $4,143.52, was smaller than the
amount of the attorney’s fees to be awarded Plaintiff’s counsel pursuant to 42 U.S.C. § 406(b), i.e.,
$8,103.75, the amount of the EAJA fees must be refunded to Plaintiff. See Gisbrecht, 535 U.S.
at 796 (“Congress harmonized fees payable by the Government under EAJA with fees under
§ 406(b) out of the claimant’s past-due Social Security benefits in this manner: Fee awards may
be made under both prescriptions, but the claimant’s attorney must ‘refun[d] to the claimant the
amount of the smaller fee.’”).
IT IS THEREFORE ORDERED that Plaintiff’s Motion for Attorney Fees (Doc. 32) be
GRANTED and Plaintiff’s counsel be awarded attorney’s fees in this matter in the amount of
$8,103.75 pursuant to 42 U.S.C. § 406(b).
IT IS FURTHER ORDERED that, upon payment of the Section 406(b) fee, Plaintiff’s
counsel shall promptly refund to Plaintiff the attorney’s fees previously awarded in this matter
pursuant to the EAJA, in the amount of $4,143.52.
IT IS SO ORDERED.
LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE
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