Perrault v. Social Security Administration

Filing 33

ORDER granting 29 Motion for Attorney Fees by Chief Magistrate Judge Carmen E. Garza (ag)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SONJA LYNN PERRAULT,
Plaintiff,
v.

No. CV 18-467 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 Sonja Perrault’s Motion for Order
Authorizing Attorney Fees Pursuant to 42 U.S.C. 406(b) and Supporting Memorandum
(the “Motion”), (Doc. 29), filed March 4, 2020; and Defendant Commissioner’s
Response to Plaintiff’s Attorney’s Motion for Order Authorizing Attorney Fees Pursuant
to 42 U.S.C. § 406(b) (the “Response”), (Doc. 32), filed March 11, 2020. Ms. Perrault
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. Perrault’s attorney, Laura Johnson, moves the Court for an
order authorizing attorney fees in the amount of $11,768.63 for legal services rendered
before this Court. (Doc. 29 at 1). In his Response, the Commissioner explains he “takes
no position” on Ms. Perrault’s Motion. (Doc. 32 at 1). Having reviewed the Motion, the
relevant law, and being otherwise fully advised, the Court finds Ms. Perrault’s Motion
shall be GRANTED.

I.

Procedural Background
Ms. Perrault instituted an action in this Court on May 18, 2018, seeking judicial

review of the Commissioner’s denial of her application for disability insurance benefits.
(Doc. 1 at 1); (Doc. 17 at 3). On February 4, 2019, the Court granted Ms. Perrault’s
Motion to Remand, finding the Administrative Law Judge erred in her consideration of
the treating physician’s opinion. (Doc. 24). As a result, Ms. Perrault’s application was
remanded to the Commissioner for further proceedings. (Doc. 25).
On remand, Defendant Commissioner determined Ms. Perrault was disabled,
entered a fully favorable decision, and awarded her past-due benefits in the amount of
$52,970.37. (Doc. 29 at 5). On May 2, 2019, Ms. Perrault’s attorney applied for, and
was awarded, Equal Access to Justice Act (“EAJA”) fees for her work performed before
this Court, totaling $7,000. (Doc. 26); (Doc. 27). Now, Ms. Perrault’s attorney seeks an
award of $11,768.63, approximately 22 percent of the total past-due benefits awarded
to Ms. Perrault. (Doc. 29 at 1).
II.

Analysis
The present issue before the Court is whether counsel’s requested fee of

$11,768.63 is reasonable, as mandated by the controlling statute. When reviewing
counsel’s request for attorney fees under § 406(b), the Court must act as an
“independent check” to ensure the requested fee is reasonable, even if the
Commissioner offers no objection. 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 past-due benefits. Gisbrecht v. Barnhart, 535 U.S. 789, 807
(2002). However, there is no presumption that a 25 percent fee is reasonable. Id. at

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807, n.17. It is counsel’s burden to demonstrate the reasonableness of their requested
fee. Id. at 807.
Specifically, 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); see also
McGraw v. Barnhart, 450 F.3d 493, 495-96 (10th Cir. 2006). Unlike EAJA fees, which
are paid in addition to past-due benefits, § 406(b) fees are paid out of the 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) (2006).
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

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fees. See 42 U.S.C. § 406(b). The Tenth Circuit Court of Appeals, 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.
Here, counsel obtained a fully favorable decision for Ms. Perrault upon remand.
(Doc. 29-1 at 5). In addition, the instant motion was filed within three months of Ms.
Perrault receiving notice that she was entitled to past-due benefits, an amount of time
the Court finds to be reasonable. See id. at 11 (awarding past-due benefits on
December 1, 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 litigating this
case. See id. at 16-19.
Specifically, counsel documented 37.6 hours in representing Ms. Perrault before
the Court. Id. at 16-19; 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). Moreover, counsel’s hourly
rate of $313 is within the district’s average. See Gallegos v. Colvin, Civ. 12-321 SMV
(Doc. 32) (awarding $617.28 per hour); Montes v. Barnhart, Civ. 01-578 BB/KBM (Docs.
19, 22) (awarding $701.75 per hour). Considering both the time spent litigating Ms.
Perrault’s claim and the hourly fee, counsel’s requested award is reasonable. See
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).

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In conclusion, the Court finds each component of counsel’s requested fee award
is reasonable. Indeed, the requested award is within the district average and is based
on the successful representation of Ms. Perrault. Moreover, both the hourly rate and the
time spent litigating this case are consistent with similar awards approved in this district.
As a result, having conducted an “independent check” on counsel’s fee petition, the
Court finds counsel’s fee award should be approved.
III.

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

Attorney Fees Pursuant to 42 U.S.C. 406(b) and Supporting Memorandum, (Doc. 29),
shall be GRANTED. Ms. Perrault’s counsel is awarded $11,768.63 for legal services
performed before this Court, to be paid from Ms. Perrault’s past-due benefits previously
withheld by the Commissioner. See (Doc. 26-1 at 12) (explaining the Commissioner
withheld $17,768.63 from Ms. Perrault’s award of past-due benefits to cover attorney
fees). Ms. Perrault’s counsel is further directed to refund $7,000 to Ms. Perrault, the
amount awarded under EAJA, notwithstanding any mandatory deductions. See 31
U.S.C. § 3716(c)(3)(B) (2006); Weakley v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986).
IT IS SO ORDERED.

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

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