Baca v. Social Security Administration

Filing 24

ORDER granting 22 Motion for Attorney Fees by Chief Magistrate Judge Carmen E. Garza. (ag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
CARINA BACA,
Plaintiff,
v.

No. CV 17-449 CG

ANDREW SAUL,
Commissioner of the Social Security
Administration,
Defendant.
ORDER GRANTING ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(b)
THIS MATTER is before the Court on Plaintiff Carina Baca’s Motion for Order
Authorizing Attorney Fees Pursuant to 42 U.S.C. 406(B) and Supporting Memorandum
(the “Motion”), (Doc. 22), filed January 7, 2020; and Defendant Commissioner’s
Response to Plaintiff’s Motion for Attorney Fees under 42 U.S.C. § 406(b) (the
“Response”), (Doc. 23), filed January 9, 2020. Ms. Baca did not file a Reply in support
of her Motion and the time for doing so has now passed. See D.N.M. LR-Civ. 7.4(a)
(explaining a “reply must be served within fourteen (14) calendar days after service of
the response.”).
In the Motion, Ms. Baca’s attorney, Laura Johnson, moves the Court for an order
authorizing attorney fees in the amount of $24,906 for legal services rendered before
this Court. (Doc. 22 at 1). In his Response, the Commissioner explains that while he
“generally takes no position on such petitions,” he brings to the Court’s attention that
counsel is requesting “attorney fees at the rate of $1,025 per hour,” an amount “well in
excess of the hourly rate that courts determined to be reasonable in the cases that
Plaintiff’s counsel cites.” (Doc. 23 at 3). Having reviewed the Motion, the relevant law,

and being otherwise fully advised in the premises, the Court finds Ms. Baca’s Motion
shall be GRANTED.
I.

Procedural Background
Ms. Baca instituted an action in this Court on April 12, 2017, seeking judicial

review of the Commissioner’s denial of her applications for disability insurance benefits
and supplemental security income. (Doc. 1 at 1); (Doc. 14 at 3). On December 6, 2017,
the Commissioner concurred in Ms. Baca’s request for a remand, (Doc. 16), and the
Court granted the parties’ unopposed motion to remand, (Doc. 17). As a result, Ms.
Baca’s applications were remanded to the Commissioner for further proceedings. (Doc.
18).
On remand, Defendant Commissioner determined Ms. Baca was disabled,
entered a fully favorable decision, and awarded her past-due benefits in the amount of
$123,624.00. (Doc. 22-1 at 15). On March 5, 2018, Ms. Baca’s attorney applied for, and
was awarded, Equal Access to Justice Act (“EAJA”) fees for her work performed before
this Court, totaling $4,762.80. (Doc. 20 at 1). Now, Ms. Baca’s attorney seeks an award
of $24,906.00, approximately 20 percent of the total past-due benefits awarded to Ms.
Baca. Id. at 5.
II.

Analysis
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 the past-due benefits.

2

Wrenn ex rel. Wrenn v. Astrue, 525 F.3d 931, 933-34 (10th Cir. 2008). If fees are
awarded under both the 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, 495-96 (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 percent of the pastdue benefits. Gisbrecht v. Barnhart, 535 U.S. 789, 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 25 percent of past-due benefits, because there is no
presumption that 25 percent 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.” Gisbrecht, 535 U.S. at 808.
Factors relevant to the reasonableness of the fee request include: (i) whether the
attorney’s representation was substandard; (ii) whether the attorney was responsible for
any delay in the resolution of the case; and (iii) 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 hourly 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 Court of Appeals, however, has held

3

that a request “should be filed within a reasonable time of the Commissioner’s decision
awarding benefits.” McGraw, 450 F.3d at 505.
Here, counsel obtained a fully favorable decision for Ms. Baca upon remand.
(Doc. 22-1 at 1). In addition, the instant motion was filed within three months of Ms.
Baca receiving notice that she was entitled to past-due benefits, an amount of time the
Court finds to be reasonable. See id. at 13 (awarding past-due benefits on November 2,
2019). Moreover, the requested fee for services performed in connection with this case
is within the 25-percent cap imposed by § 406(b). The requested fee is also not
disproportionately large in comparison to the amount of time spent on the case,
particularly given counsel’s experience working on Social Security cases. See id. at 18.
Specifically, counsel documented 24.3 total hours in representing Ms. Baca before this
Court, for an hourly rate of roughly $1,025.00. Id. at 19.
The Court has considered the Commissioner’s contention that counsel’s hourly
rate is higher than that ordinarily awarded under similar circumstances. See (Doc. 23 at
3). The Court agrees that counsel’s hourly rate is high, but the factors in support of the
fee agreement outweigh any argument supporting unreasonableness. In particular, Ms.
Baca agreed to pay counsel up to 25 percent of her award of past-due benefits. (Doc.
22-1 at 20). The Court is compelled to honor this contract, absent a showing of bad faith
or capriciousness, to ensure that future Social Security claimants with legally
recognized disabilities are afforded competent and zealous representation. In addition,
Ms. Baca’s counsel has over thirty years of legal experience, much of which were spent
practicing Social Security law. Id. at 18. Thus, while the hourly rate is higher than that
ordinarily awarded, counsel’s experience and skill is commensurate with this higher

4

rate.
In addition, because of counsel’s experience in litigating Social Security disputes,
it took limited time and resources to litigate the present case, only 24.3 hours. See
Bigsby v. Colvin, Civ. 12-1207 CG (Doc. 31) (finding fee award for 37.33 hours
reasonable); Arellanes v. Colvin, Civ. 12-1178 KBM (Doc. 32) (finding fee award for
36.76 hours reasonable); Dimas v. Astrue, Civ. 03-1157 RHS (Doc. 34) (finding fee
award for 38.26 hours reasonable). The higher hourly rate therefore compensates for
the fewer number of hours counsel had to expend in order to get a successful outcome,
the result of years of practice before the federal courts. The Court is not inclined to
punish counsel for working efficiently and charging a higher rate because of their ability
to do so. Finally, the Court notes that while counsel’s hourly rate is high, the overall fee
award is within the fee range found to be reasonable in this district. See, e.g., Sanchez
v. Colvin, Civ. 16-1126 KRS (Doc. 30) (awarding $31,306.00); Salazar v. Berryhill, Civ.
14-283 KRS (Doc. 30) (awarding $19,442.25); Bigsby, Civ. 12-1207 CG (Doc. 31)
(awarding $21,839.00).
In conclusion, the Court agrees with the Commissioner that counsel’s hourly rate
is high. However, the hourly rate is weighed against counsel’s experience, Ms. Baca’s
consent to the executed fee agreement, the policy reasons advanced by § 406(b), and
the other fee awards granted in this district. Having analyzed each of these factors and
others pertinent to this dispute, the Court finds the requested fee award is reasonable.
III.

Conclusion
IT IS THEREFORE ORDERED that Ms. Baca’s Motion for Order Authorizing

Attorney Fees Pursuant to 42 U.S.C. 406(B) and Supporting Memorandum, (Doc. 22),

5

shall be GRANTED. Ms. Baca’s counsel is awarded $24,906.00 for legal services
performed before this Court, to be paid from Ms. Baca’s past-due benefits previously
withheld by the Commissioner. Ms. Baca’s counsel is further directed to refund
$4,762.80 to Ms. Baca, the amount awarded under EAJA. See Weakley v. Bowen, 803
F.2d 575, 580 (10th Cir. 1986) (explaining that when an attorney is awarded both EAJA
fees and fees under § 406(b), the attorney must refund the amount of the smaller fee to
the claimant).
IT IS SO ORDERED.

______________________________
THE HONORABLE CARMEN E. GARZA
CHIEF UNITED STATES MAGISTRATE JUDGE

6