Lujan v. Social Security Administration
ORDER by Magistrate Judge Lourdes A. Martinez granting 39 Motion for Section 406(b) Attorney Fees (jca)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CIV No. 15-200 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. 39)
(hereinafter “motion”), filed February 16, 2017, requesting attorney fees in the amount of
$18,053.00. On February 27, 2017, 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 that the Court requires a response, the Commissioner has no
objection to the petition in this case.” [Doc. 40 at 1-2]. Plaintiff did not file a reply to
Defendant’s response and, on March 3, 2017, filed a notice that briefing of the motion was
complete. [Doc. 41]. Having considered the motion, response, relevant law, and the record in
this case, and being otherwise fully advised, the Court finds that the motion should be
Plaintiff filed her complaint in this action on March 9, 2015 (Doc. 1) and, after one
unopposed motion to extend her brief deadline (Doc. 18), Plaintiff filed her motion to reverse and
remand (Doc. 21) on August 21, 2015. Also after one unopposed motion for extension of time
(Doc. 22), Defendant filed a response on November 19, 2015 (Doc. 25). Plaintiff filed a reply in
support of the remand motion on December 4, 2015. [Doc. 26]. On March 1, 2016, the Court
granted Plaintiff’s motion and remanded the case to the Commissioner for further proceedings.
[Doc. 28]. On May 30, 2016, Plaintiff filed a motion for attorney fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412 (hereinafter, “EAJA”), in the amount of $6,650.00.
[Doc. 30]. On June 13, 2016, Defendant opposed Plaintiff’s EAJA motion on the ground that
“the Commissioner’s position was substantially justified.” [Doc. 31 at 1]. After two unopposed
motions to extend the filing deadline (Docs. 32 and 34), Plaintiff filed a reply in support of her
motion on July 15, 2016 (Doc. 36). Plaintiff’s EAJA motion was granted by this Court on
August 11, 2016, in the amount requested. [Doc. 38].
On August 23, 2016, Plaintiff received a fully favorable decision from the Social Security
Administration (hereinafter, “SSA”).
[Doc. 39-1 at 1].
A November 13, 2016 “Notice of
Award” indicates that Plaintiff’s “past-due Social Security benefits are $96,212.00 for the period
from July 2010 through August 2016. [Doc. 39-2 at 3]. The notice also indicates that 25% of
the past-due benefits, or $24,053.00, had been withheld from Plaintiff’s benefits for payment of
Plaintiff’s counsel, and that the SSA had approved the fee agreement between Plaintiff and her
lawyer that entitled counsel to $6,000.00 for his work on Plaintiff’s behalf before the agency. Id.
Pursuant to 42 U.S.C. § 406(b), and a prior contingent fee agreement with Plaintiff
(Doc. 39-2 at 10), Plaintiff’s counsel now requests attorney’s fees in the amount of $18,053.00 for
time spent representing Plaintiff before this Court. [Doc. 39 at 1]. Together, the award of a
$6,000.00 fee by the SSA, pursuant to § 406(a), and fees in the amount of $18,053.00 requested
from this Court, pursuant to § 406(b), total $24,053.00, which is 25% of the 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 § 406(b) for court representation may not exceed twenty five percent of
the past-due benefits awarded to Plaintiff, and is 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 fee requested by Plaintiff’s counsel under Section 406(b), i.e., $18,053.00, does
not exceed twenty-five percent of the past-due benefits awarded to Plaintiff. The record indicates
that Plaintiff’s counsel provided quality representation to Plaintiff, was not responsible for any
undue delay in the resolution of this matter, and expended at least 35 hours representing Plaintiff
before this Court. See [Doc. 39-2 at 7-8]. The record further indicates that Plaintiff and her
counsel entered into a contingent fee agreement that provides that the fee 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 10. The Court finds that the amount of past-due
benefits awarded to Plaintiff was not so large in comparison to the time expended by her counsel as
to require a further reduction of fees. See Gisbrechtv. Barnhart, 535 U.S. 789, 808 (2002)
(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 November 13, 2016, and this
motion was filed February 16, 2017, 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 $18,053.00 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.,
$6,650.00, 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., $18,053.00, the amount of the EAJA fees must be refunded to
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 Order Authorizing
Attorney Fees Pursuant to 42 U.S.C. § 406(b) and Supporting Memorandum (Doc. 39) is
GRANTED and Plaintiff’s counsel is awarded attorney’s fees in this matter in the amount of
$18,053.00, 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 amount of attorney’s fees previously awarded in this
matter under the EAJA, in the amount of $6,650.00.
IT IS SO ORDERED.
LOURDES A. MARTÍNEZ
UNITED STATES MAGISTRATE JUDGE
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