Molina v. Social Security Administration

Filing 34

ORDER by Magistrate Judge Kevin R. Sweazea granting 30 Motion for Attorney Fees. (atc)

Case 1:17-cv-01151-KRS Document 34 Filed 12/07/20 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
EUFIMO P. MOLINA,
Plaintiff,
vs.

No. 1:17-CV-01151 KRS

ANDREW SAUL, Commissioner of
Social Security,1
Defendant.
ORDER GRANTING § 406(b) ATTORNEY FEES
THIS MATTER comes before the Court upon Plaintiff’s Motion for Attorney Fees
Pursuant to 42 U.S.C. § 406(b)(1)(A). (Doc. 30). The Commissioner has no objection to the
motion. (See Doc. 32). The Court, having considered the motion and the reasonableness of the
requested award, finds that the motion is well taken and should be granted.
On August 14, 2018, this Court granted the Commissioner’s Unopposed Motion to
Remand for Further Administrative Proceedings. (See Docs. 23, 24). Thereafter, the Court
awarded Plaintiff’s counsel Equal Access to Justice Act (“EAJA”) fees in the amount of
$4,094.80. (See Doc. 28). According to Plaintiff, the Social Security Administration on remand
found him to be disabled and awarded him approximately $57,348.00 in past-due benefits. (See
Doc. 30 Exh. B); (see also Doc. 29) (stating that fully favorable decision was reached on March
10, 2020). The Commissioner withheld $14,337.00—twenty-five percent (25%) of the
approximate award—to cover potential attorney fees. (See Doc. 30 Exh. B at 1-2). Plaintiff’s
counsel, pointing to a contingency agreement between herself and Plaintiff permitting attorney

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Andrew Saul is substituted as Commissioner of the Social Security Administration by operation of FED. R. CIV. P.
25(d).

Case 1:17-cv-01151-KRS Document 34 Filed 12/07/20 Page 2 of 4

fees of up to twenty-five percent (25%) of past-due benefits (see Doc. 30 Exh. A), now seeks
authorization from this Court to receive $6,000 of the withheld funds.
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 of the total of the past-due benefits to which
the claimant is entitled.” 42 U.S.C. § 406(b)(1)(A); see also McGraw v. Barnhart, 450 F.3d 493,
495 (10th Cir. 2006) (holding that fees may be awarded 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”). 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 the EAJA and § 406(b),
the attorney must refund the lesser award to the claimant. Id. at 934. However, the refund of
EAJA fees is offset by any mandatory deductions under the Treasury Offset Program, which may
collect delinquent debts owed to federal and state agencies from a claimant’s award of past-due
benefits. See 31 U.S.C. § 3716(c)(3)(B).
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. Id. at 807.
Importantly, there is no presumption that a fee equal to or below the twenty-five percent (25%)
cap is reasonable. Id. Rather, it is simply a congressionally created “boundary line” and “the
attorney for the successful claimant must show that the fee sought is reasonable for the services
rendered.” Id.

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To determine reasonableness, courts consider factors including: (1) whether the
attorney’s representation was substandard; (2) whether the attorney was responsible for any
delay in the 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. at 808. 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.
In this case, the Court finds that Plaintiff’s counsel’s representation was competent; that
Plaintiff’s counsel obtained a fully favorable decision (see Doc. 29) without delaying the
proceedings before this Court; and that the instant motion was filed within a reasonable time
after Plaintiff received notice of entitlement to past-due benefits.2 The Court further finds that the
requested fee of $6,000.00 is no greater than the twenty-five percent (25%) of past-due benefits
permitted by Plaintiff’s contingency agreement (see Doc. 30 Exh. A) and that it is proportionate
given the amount of time (20.4 hours) Plaintiff’s counsel expended in this case (see Doc. 30 Exh.
D). The Court notes that the requested fee translates to an hourly rate of roughly $294.12, which
is in line with § 406(b) awards authorized in other cases. See, e.g., Torrence v. Saul, No. 18-cv934 SCY (D.N.M. Oct. 22, 2020) (hourly rate of $597.61); Reid v. Saul, 16-cv-1104 SMV
(D.N.M. Mar. 3, 2020) (hourly rate of $425.44). 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) (Doc. 30) is GRANTED. The Court hereby authorizes an award of attorney fees in the
amount of $6,000.00 and directs the Commissioner to pay this award directly to Plaintiff’s

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Although the instant motion was filed approximately five months after Plaintiff received her favorable decision,
Plaintiff’s counsel avers that she had trouble acquiring necessary documentation relating to this motion due to
Plaintiff’s representation by another attorney at the agency level. (See Doc. 29). The Court therefore finds that
Plaintiff’s counsel was not responsible for any undue delay relating to the filing of this motion.

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Case 1:17-cv-01151-KRS Document 34 Filed 12/07/20 Page 4 of 4

counsel, MacDowell Law P.C., from the amount of past-due benefits withheld for this purpose.
IT IS FURTHER ORDERED that because the $4,094.80 in EAJA fees previously awarded by
this Court (see Doc. 28) was garnished under the Treasury Offset Program (see Doc. 30 Exh. E),
counsel is not required to refund the EAJA fees to Plaintiff. See 31 U.S.C. § 3716(c)(3)(B).

_____________________________________
KEVIN R. SWEAZEA
UNITED STATES MAGISTRATE JUDGE

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