Saiz v. Social Security Administration
ORDER GRANTING § 406(b)ATTORNEY FEES by Magistrate Judge Kevin R. Sweazea granting 31 Motion for Attorney Fees (sls)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DANIEL PETER SAIZ,
No. CIV 15-305-LAM
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 $14,112.00
in attorney fees under 42 U.S.C. § 406(b)(1). Doc. 31 . Defendant declined to take a position
with regard to the reasonableness of the requested award. Being fully advised in the premises,
the Court finds that Plaintiff’s Motion is well-taken and should be granted.
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
$5,900.00. See Doc.30. Following this Court’s remand, the Social Security Administration found
Plaintiff to be disabled and awarded $80,448.00 in past due benefits, but withheld twenty-five
percent of those benefits, $20,112.00, in the event that Plaintiff’s counsel were to bring a claim
for attorney fees pursuant to the retainer agreement. Plaintiff’s counsel now seeks authorization
from this Court for an award of compensation for legal services in an amount significantly less
than that withheld.
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.
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 twenty-five percent (25%) 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 twenty-five percent (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 twenty-five percent (25%) of the past-due benefits because there is no presumption that
twenty-five percent (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 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 it 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 fees are significantly below the twenty-five percent (25%) permitted by the retainer
agreement and proportionate given the amount of time (32.9 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 (awarding $10,105 for 18.9
hours, or $529.00 per hour); Dimas v. Astrue, CIV 03-1157 RHS (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 $14,112.00 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 $5,900.00.
UNITED STATES MAGISTRATE JUDGE
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