Key v. Social Security Administration
Filing
42
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION re 36 MOTION for Attorney Fees filed by Jennifer Nicole Key by Magistrate Judge Gregory B. Wormuth. Objections to PFRD due by 12/18/2020. (jls)
Case 1:17-cv-00386-KWR-GBW Document 42 Filed 12/04/20 Page 1 of 7
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
JENNIFER NICOLE KEY,
Plaintiff,
v.
ANDREW SAUL,
Commissioner of the Social
Security Administration,
Defendant.
Civ. No. 17‐386 KWR/GBW
PROPOSED FINDINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before me on Plaintiff’s Motion for an Order Authorizing
Attorney’s Fees Pursuant to 42 U.S.C. § 406(b) (doc. 36), pursuant to the Court’s Order of
Reference (doc. 40). Plaintiff’s counsel seeks an award of $20,371.25 in attorney’s fees.
Doc. 36 at 1. The Commissioner does not object to the requested award. Doc. 41 at 1.
Having reviewed the briefing and being otherwise fully advised in the premises, I
RECOMMEND that the Court GRANT Plaintiff’s Motion.
I.
BACKGROUND
Plaintiff filed applications for Social Security Disability Insurance (“SSDI”) and
Supplemental Security Income (“SSI”), alleging disability beginning December 22, 2011.
Doc. 13‐1 at 36. Plaintiff’s application was denied by a final decision of the Social
Security Administration (“SSA”) effective January 31, 2017. Id. at 5–7. On March 29,
Case 1:17-cv-00386-KWR-GBW Document 42 Filed 12/04/20 Page 2 of 7
2017, Plaintiff initiated suit in this Court. Doc. 1. She filed a Motion to Reverse and
Remand the SSA’s decision on August 14, 2017. Doc. 20. Briefing on Plaintiff’s motion
was complete on October 30, 2017. Doc. 26. On May 8, 2018, this Court adopted my
Proposed Findings and Recommended Disposition (doc. 27), granted Plaintiff’s motion,
and remanded the action to the Commissioner. Doc. 29.
On July 8, 2018, Plaintiff moved for an award of fees pursuant to the Equal
Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”). Doc. 31. The Court awarded Plaintiff
$6,306.30 in attorney’s fees. Doc. 34.
On April 16, 2020, the SSA issued a fully favorable decision to Plaintiff, finding
Plaintiff disabled for purposes of SSDI and SSI. Doc. 36‐1. The SSA awarded Plaintiff
past‐due SSDI benefits totaling $81,485, withholding $20,371.25 (i.e., 25% of the total
past‐due benefits) for payment of attorney’s fees. Doc. 37 at 3; doc. 36‐3 at 2. The SSA
awarded Plaintiff past‐due SSI payments totaling $40,992.84. Doc. 37 at 3; doc. 36‐2 at 1.
No attorney’s fees have been awarded by the SSA pursuant to 42 U.S.C. § 406(a).
In the instant Motion, Plaintiff moves for attorney fees pursuant to 42 U.S.C. §
406(b) in the amount of $20,371.25. Doc. 36 at 1. Plaintiff also asks that the EAJA fee of
$6,306.30 be refunded to Plaintiff from Plaintiff’s counsel. Id. at 2.
II.
STANDARD OF REVIEW
Attorneys representing Social Security claimants may receive fee awards under
both the EAJA and 42 U.S.C. § 406, although the attorney must refund the smaller
2
Case 1:17-cv-00386-KWR-GBW Document 42 Filed 12/04/20 Page 3 of 7
award to the claimant. Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986). Fees
pursuant to 42 U.S.C. § 406 are awarded upon a claimant’s receipt of past‐due benefits.
McGraw v. Barnhart, 450 F.3d 493, 505 (10th Cir. 2006). Fees for representation at
administrative proceedings are governed by § 406(a), while § 406(b) governs fees for
representation in court. Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002). “[E]ach authority
sets fees for the work done before it; thus, the court does not make fee awards for work
at the agency level, and the Commissioner does not make fee awards for work done
before the court.” McGraw, 450 F.3d at 498.
Under § 406(b), “[w]henever a court renders a judgment favorable to a claimant
. . . the court may determine and allow as part of its judgment a reasonable fee” for the
attorney who represented that claimant before the court, provided that the fee is “not in
excess of 25 percent of the total of the past‐due benefits” resulting from the judgment. §
406(b)(1)(A); see also Culbertson v. Berryhill, 139 S. Ct. 517, 523 (2019) (holding that “the
25% cap in § 406(b)(1)(A) applies only to fees for court representation, and not to the
aggregate fees awarded under §§ 406(a) and (b)”).
The Supreme Court has held that “§ 406(b) does not displace contingent‐fee
agreements,” noting that such agreements are “the primary means by which fees are set
for successfully representing Social Security benefits claimants in court.” Gisbrecht, 535
U. S. at 807. Instead, Ҥ 406(b) calls for court review of such arrangements as an
independent check, to assure that they yield reasonable results in particular cases.” Id.
3
Case 1:17-cv-00386-KWR-GBW Document 42 Filed 12/04/20 Page 4 of 7
“Within the 25 percent boundary, . . . the attorney for the successful claimant must
show that the fee sought is reasonable for the services rendered.” Id.
The reasonableness determination is “based on the character of the
representation and the results the representative achieved.” Id. at 808 (citations
omitted). In making such a determination, a court may therefore consider factors such
as (1) whether the representation was substandard, (2) whether the attorney was
responsible for any delay that caused benefits to accrue, and (3) whether the benefits are
large in comparison to the amount of time counsel spent on the case. Id. (citations
omitted); Gordon v. Astrue, 361 F. App’x 933, 935 (10th Cir. 2010) (unpublished).
III.
ANALYSIS
As a preliminary matter, the requested award is less than the 25% of past‐due
benefits permitted as a fee award by both § 406(b) and Plaintiff’s fee agreement. See doc.
38‐1. Plaintiff’s total past‐due benefit award for both SSDI and SSI was $122,477.84.
The requested fee award of $20,371.25 is approximately 16.6% of Plaintiff’s past‐due
benefits.
Based on the Gisbrecht factors, I find the requested fee award reasonable. First,
the undersigned finds that counsel ably represented Plaintiff, obtaining a fully
favorable result. There is no reason to believe the counsel’s representation was in any
way substandard. The fee appears reasonable in light of counsel’s performance and his
4
Case 1:17-cv-00386-KWR-GBW Document 42 Filed 12/04/20 Page 5 of 7
forty‐two years of experience as an attorney practicing in the field of Social Security.
See doc. 38 at ¶ 7.
Second, I find that Plaintiff’s counsel was not responsible for any undue delay
that caused benefits to accrue. The SSA decision became final on January 31, 2017, doc.
13‐1 at 5, and Plaintiff filed suit in this Court on March 29, 2017, doc. 1. Thereafter,
Plaintiff’s counsel complied with the Court’s briefing schedule and did not request any
extensions, allowing briefing on Plaintiff’s motion to remand to be completed just seven
months after the filing of the complaint. I find that counsel was diligent in bringing
Plaintiff’s case to its resolution.
Third, the requested award is proportionate to the reasonable time spent on this
case. Plaintiff’s counsel reports 38.02 or 40.02 hours1 expended in this case. Doc. 37 at 2;
doc. 38‐2. I find that these hours are on the high end of the average hours billed for a
Social Security appeal. See Martinez v. Colvin, 2016 WL 9774938, at *2 (D.N.M. Nov. 30,
2016) (unpublished) (“Courts have held the average hours required to fully brief a
social security appeal in the Tenth Circuit generally range from 20 to 40 hours.”).
However, the requested fee is nonetheless reasonable, as it falls within the range of fees
Plaintiff’s counsel reports two different hours in his filings on this matter. In his memorandum in support
of the instant Motion, Plaintiff’s counsel states that he has expended 38.02 hours in this case and cites to
an affidavit filed in 2018 in support of the motion for EAJA fees. Doc. 37 at 2 (citing doc. 33 at 5–6). In his
affidavit in support of the instant Motion, however, counsel’s time records show 40.02 hours expended in
this case. Doc. 38‐2. The discrepancy relates to the last two entries, dated May 29–30, 2017, which total
3.6 hours in the 2018 record but 5.6 hours in the more recent record. Counsel’s purpose in presenting this
matter across three separate filings (i.e., a motion, a memorandum, and an affidavit, each with its own set
of exhibits) is unclear, and the discrepancy in the recorded hours is left unexplained.
1
5
Case 1:17-cv-00386-KWR-GBW Document 42 Filed 12/04/20 Page 6 of 7
awarded in this district for fewer hours. See Kelley v. Saul, 2020 WL 3893055, at *3
(D.N.M. July 10, 2020) (unpublished) (awarding $33,820.90 for 31.5 hours); Baca v. Saul,
2020 WL 871547, at *2–3 (D.N.M. Feb. 21, 2020) (unpublished) (awarding $24,906.00 for
24.3 hours); Valdez v. Saul, 2019 WL 4451127, at *2 (D.N.M. Sept. 17, 2019) (unpublished)
(awarding $22,497.13 for 28.6 hours). I therefore recommend awarding the requested
fee of $20,371.25 in full.
Finally, I find that the instant motion was filed within a reasonable time. See
McGraw, 450 F.3d at 505 (citation omitted) (“A motion for an award of fees under §
406(b)(1) should be filed within a reasonable time of the Commissioner’s decision
awarding benefits.”). The SSA issued a Notice of Award regarding Plaintiff’s past‐due
SSI payments on August 4, 2020. Doc. 36‐2. On August 7, 2020, Plaintiff filed a Notice
of Intent to File for Attorney Fees Under 42 U.S.C. § 406(b), which noted that Plaintiff
was still awaiting an award letter regarding Plaintiff’s SSDI benefits. Doc. 35. The SSA
issued a Notice of Award for past‐due SSDI benefits on September 5, 2020. Doc. 36‐3.
This motion was filed within six weeks thereafter, on October 14, 2020, which I find a
reasonable time. See Shultz v. Saul, 2020 WL 5645697, at *3–4 (D.N.M. Sept. 22, 2020)
(unpublished) (exercising discretion to find that a delay of more than eight months from
the issuance of the Notice of Award to the filing of the motion was reasonable); Early v.
Astrue, 295 F. App’x 916, 918 (10th Cir. 2008) (unpublished) (affirming district court’s
decision that motion filed thirteen months after Notice of Award was untimely).
6
Case 1:17-cv-00386-KWR-GBW Document 42 Filed 12/04/20 Page 7 of 7
For the foregoing reasons, I RECOMMEND that Plaintiff’s Motion (doc. 36) be
GRANTED, and the Court authorize an award of $20,371.25 in attorney fees, to be paid
to Plaintiff’s counsel by the SSA from the funds withheld for this purpose.
I FURTHER RECOMMEND that Plaintiff’s counsel be ORDERED to refund the
EAJA award of $6,306.30 to Plaintiff pursuant to Weakley v. Bowen, 803 F.2d 575, 580
(10th Cir. 1986).
_____________________________________
GREGORY B. WORMUTH
UNITED STATES MAGISTRATE JUDGE
THE PARTIES ARE FURTHER NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of
a copy of these Proposed Findings and Recommended Disposition they may file written
objections with the Clerk of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party
must file any objections with the Clerk of the District Court within the fourteen‐day
period if that party wants to have appellate review of the proposed findings and
recommended disposition. If no objections are filed, no appellate review will be
allowed.
7
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?