Spiess v. Social Security Administration

Filing 31

REPORT AND RECOMMENDATIONS by Magistrate Judge Steven C. Yarbrough re 28 Motion for Attorney Fees. Objections to R&R due by 7/1/2020. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (kfo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DEANDRA MARIE SPIESS,
Plaintiff,
vs.

Civ. No. 17-1131 JAP/SCY

ANDREW SAUL,
Commissioner of Social Security,1
Defendant.
PROPOSED FIDNINGS AND RECOMMENDED DISPOSITION
THIS MATTER comes before the Court on Plaintiff’s Motion For Order Authorizing
Attorney Fees Pursuant To 42 U.S.C. § 406(B) And Supporting Memorandum, filed May 13,
2020. Doc. 28. The Commissioner indicates he is not a party to § 406(b) fee awards and
generally takes no position on such petitions. “Accordingly, the Commissioner takes no position
in this case but rather he defers to the Court’s sound discretion as to the reasonableness of the
award requested.” Doc. 30; see Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002) (the
Commissioner “has no direct financial stake in the answer to the § 406(b) question; instead, []he
plays a part in the fee determination resembling that of a trustee for the claimants”). This matter
was referred to me by the presiding judge pursuant to 28 U.S.C. §§ 636(b)(1)(B), (b)(3). Doc. 18.
Having considered the Motion and the relevant law, I recommend the Court GRANT Plaintiff’s
Motion.
BACKGROUND
DeAndra Marie Spiess instituted an action in this Court seeking judicial review of her

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Andrew Saul was sworn in as Commissioner of the Social Security Administration on June 17,
2019 and is automatically substituted as a party pursuant to Federal Rule of Civil Procedure
25(d).

denied disability claim. Doc. 1. Based on the parties’ stipulation, Doc. 21, the Court reversed and
remanded to the Social Security Administration for a rehearing, Docs. 22 & 23. Plaintiff
subsequently filed an Unopposed Motion For Attorney Fees Pursuant To The Equal Access To
Justice Act. Doc. 24. The Court awarded $5,500.00 in attorney fees, payable to Plaintiff but
mailed to Plaintiff’s counsel. Doc. 25.
On February 26, 2019, an Administrative Law Judge issued a final administrative
decision, which was fully favorable to Ms. Lucero. Doc. 28-1 at 1-8. The Agency subsequently
sent a Notice of Award indicating Ms. Spiess’ past-due benefit amounts. Doc. 28-1 at 9-15. The
Agency noted that it was withholding 25 percent of this amount, or $23,271.00, in order to pay
lawyer’s fees. Doc. 33-1 at 11.
Ms. Lucero’s attorney, Michael Armstrong Law Office, LLC, now seeks $13,271.00 in
attorney fees pursuant to 42 U.S.C. § 406(b)(1), and argues that this amount is well within the
25% of past-due benefits statutorily authorized for attorney fees for representation in court
proceedings. Doc. 28 at 1.
LEGAL STANDARD
Attorneys’ fees may be deducted from a successful social security claimant’s award of
past-due benefits. Separate subsections of 42 U.S.C. § 406 authorize fee awards for
representation before the SSA and in court, allowing attorneys to receive fees for their work in
both settings. See 42 U.S.C. § 406(a), (b).
For representation in the administrative proceedings, the statute permits an attorney to
file a fee petition or a fee agreement with the agency “whenever the Commissioner . . . makes a
determination favorable to the claimant.” 42 U.S.C. § 406(a). There is no express limit to the
fees an attorney may seek and receive in a petition; the Commissioner must only “fix . . . a

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reasonable fee,” id., while considering several factors. See Gisbrecht, 535 U.S. at 794
(explaining the fee petition process). For fees received pursuant to a fee agreement for work
before the Agency, attorneys may currently receive a maximum award of the lesser of $4,000 or
25% of the past-due benefits. 42 U.S.C. § 406(a)(2)(A).2
For representation in court proceedings, courts may award fees under § 406(b) when, as
in this case, “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, 496 (10th Cir. 2006). The statute limits a fee award for representation
before a court to 25% of the claimant’s past-due benefits. 42 U.S.C. § 406(b)(1)(A). Separate
awards of attorney fees for representation before the Agency and in court—for example, fees
pursuant to the EAJA and § 406(b)—are not limited to an aggregate of 25% of past-due benefits.
Wrenn v. Astrue, 525 F.3d 931, 936-38 (10th Cir. 2008). However, if fees are awarded under
both EAJA and § 406(b), the attorney must refund the lesser award to the claimant. McGraw,
450 F.3d at 497 n.2 (10th Cir. 2006).
While § 406(b) permits contingency fee agreements, it requires the reviewing court to act
as “an independent check” to ensure that fees awarded pursuant to such agreements are
reasonable. Gisbrecht, 535 U.S. at 807. Fee agreements are flatly unenforceable to the extent that
they provide for fees exceeding 25% of past-due benefits, but fees may be unreasonable even if
they fall below this number, and there is no presumption that fees equating to 25% of past-due
benefits are reasonable. Id. at 807 n.17. The attorney seeking fees bears the burden of

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Although the statute initially set a maximum amount of $4,000, it also gave the Commissioner
the authority to increase this amount. 42 U.S.C. § 406(a)(2)(A). Effective June 22, 2009, the
Commissioner increased the maximum amount to $6,000. Maximum Dollar Limit in the Fee
Agreement Process, 74 Fed. Reg. 6080 (Feb. 4, 2009.)
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demonstrating the reasonableness of the fee. Id. at 807.
The reasonableness determination is “based on the character of the representation and the
results the representative achieved.” Id. at 808. If the attorney is responsible for delay, the fee
may be reduced so that the attorney does not profit from the accumulation of benefits while the
case was pending in court. Id. Such a reduction also protects the claimant, as fees paid under
§ 406(b) are taken from, and not in addition to, the total of past-due benefits. 42 U.S.C.
§ 406(b)(1)(A). The fee may also be reduced if the benefits are large in comparison to the
amount of time spent on the case. Gisbrecht, 535 U.S. at 808. 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 noncontingent-fee cases. Id.
The statute does not contain a time limit for fee requests. However, the Tenth Circuit 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.
REASONBLENESS DETERMINATION
Counsel’s fee request is reasonable. First, counsel filed the fee request within a
reasonable time.3 Second, there is no evidence that counsel delayed in the proceedings before
this Court. Third, counsel’s representation was more than adequate and yielded a fully favorable
decision. Last, counsel’s fee request is not disproportionately large in comparison to the amount

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The Notice of Award is dated November 11, 2019 and the present motion was filed on May 13,
2020. Doc. 33-1 at 15. There is no explanation in the motion why counsel waited more than six
months to file this petition. Perhaps counsel was waiting on the ALJ’s fee determination, which
was issued on April 9, 2020. Doc. 28 at 3. Counsel is advised that the “reasonable time to file”
runs from the Notice of Award, rather than an ALJ’s determination on a fee petition for work
before the agency, and the question is considered “in terms of weeks or months, not years.” See
Harbert v. Astrue, No. 06-cv-90, 2010 WL 3238958, at *1 nn.1 & 4 (E.D. Okla. Aug. 16, 2010)
(persuasively explaining these points). Nonetheless, I find that the six-month delay in this case is
not quite beyond the bounds of reasonableness.
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of time spent on the case. Counsel represents he spent 59.18 hours on Ms. Speiss’ cases in
federal court, which translates into an hourly rate of $224.00. Doc. 28 at 4, 7. This rate is in line
with what the Court would normally award for hourly work, and counsel for Ms. Spiess
represents that he does “no hourly work,” Doc. 28-1 at 27 (Affidavit of Michael D. Armstrong),
so there is little basis for comparison. Additionally, I am appreciative of the high risk involved in
Social Security litigation for plaintiffs’ counsel in general and recognize that this award is in line
with others authorized in this District under 406(b). Ferguson v. Barnhart, No. 02-cv-823 KBM
(D.N.M. May 31, 2006) (hourly rate of $516.60); Valdez v. Barnhart, No. 00-cv-1777 MV/LCS
(D.N.M. Nov. 8, 2005) (hourly rate of $645.16); Montes v. Barnhart, No. 01-cv-578 BB/KBM
(D.N.M. Dec. 3, 2004) (hourly rate of $701.75); Valdez v. Saul, No. 18-cv-444 CG (D.N.M.
Sept. 17, 2019) (hourly rate of $787.00). Thus, my independent check finds the requested award
to be both appropriate and reasonable.
I therefore recommend that the Court GRANT Plaintiff’s Motion and authorize
$13,271.00 in attorney fees for legal services rendered in the United States District Court,
payable to Michael Armstrong Law Office, LLC, to be paid by the Social Security
Administration.
I further recommend that because the $6,300.00 in EAJA fees previously awarded was
garnished under the Treasury Offset Program, see Doc. 28-1 at 29, counsel need not refund to
Ms. Spiess the EAJA fees.

_________________________________________
STEVEN C. YARBROUGH
United States Magistrate Judge

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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.

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