Silva v. Social Security Administration

Filing 29

ORDER by Magistrate Judge Karen B. Molzen granting 28 Motion for Section 406(b) Attorney Fees. (KBM)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
PRECIOUS SILVA,
Plaintiff,
vs.

CIV 16-0956 KBM

ANDREW SAUL, Commissioner
of the Social Security Administration, 1
Defendant.

ORDER GRANTING § 406(b) ATTORNEY FEES
THIS MATTER is before the Court on Plaintiff’s Motion, filed July 1, 2019, for an
award of $8,881.75 in attorney fees pursuant to 42 U.S.C. § 406(b)(1). Doc. 28.
Defendant declined to take a position with regard to the reasonableness of the
requested award at the time of the motion’s filing, id. at 2, and the Commissioner has
failed to file a timely response to the motion. Pursuant to our district’s local rules, “The
failure of a party to file and serve a response in opposition to a motion within the time
prescribed for doing so constitutes consent to grant the motion.” D.N.M.LR-Civ. 7.1(b).
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 her application for Social Security disability benefits. This Court reversed the
decision of the Commissioner and remanded for a new hearing and awarded EAJA fees

Andrew Saul was confirmed as Commissioner of Social Security on June 17, 2019, and he
therefore is automatically substituted as a party pursuant to Fed. R. Civ. P. 25(d).
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in the amount of $7,500.00. See Doc. 27. No EAJA fees were received, however,
because the EAJA fee award was subject to an offset under the Treasury Offset
Program (31 U.S.C. § 3716(c)(3)(B)). See Exh. F to Motion.
Following this Court’s remand, the Social Security Administration found Plaintiff
to be disabled and awarded $59,527.00 in past due benefits, but withheld twenty-five
percent of those benefits, $14,881.75, in the event that Plaintiff’s counsel brought 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.
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); ); Culbertson v. Berryhill,

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___ U.S. ___, 139 S. Ct. 517, 521-23 (January 8, 2019) (Section 406(b)(1)(A)'s 25%
cap applies only to fees for court representation and not to the aggregate fees awarded
under §§ 406(a) and (b)). 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 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 the Michael D.
Armstrong Law Office, LLC 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

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below the 25% permitted by the retainer agreement and proportionate given the amount
of time (40.8 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.
Wherefore,
IT IS HEREBY ORDERED that Plaintiff’s Motion for attorney fees under § 406(b)
is granted. The Court hereby authorizes $8,881.75 in attorney fees for legal services
rendered in United States District Court, to be paid by the Social Security
Administration.

________________________________________
UNITED STATES MAGISTRATE JUDGE

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