Upton v. Social Security Administration
ORDER by Chief Magistrate Judge Carmen E. Garza denying 49 Motion for Reconsideration re 48 Order on Motion for Attorney Fees. (ke)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
No. CV 19-482 CG
ANDREW SAUL, Commissioner
of the Social Security Administration,
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff Robert Upton’s counsel’s Movant’s
Motion to Reconsider, (the “Motion”), (Doc. 49), filed May 14, 2021. Neither Defendant
Commissioner Andrew Saul nor Mr. Upton have filed a response to the Motion, and the
time for doing so has passed. See D.N.M.LR-Civ. 7.4(a) (“A response must be served
within fourteen (14) days after service of the motion.”).
In his Motion, Mr. Upton’s counsel petitions the Court to reconsider its Order
Granting Attorney Fees Pursuant to 42 U.S.C. 406(b), (Doc. 48), in which the Court
awarded counsel $31,920.00 for legal services rendered before this Court, and instead
award him attorney fees in the amount of $44.399.50. (Doc. 49 at 8). The Court, having
reviewed the Motion and the relevant law, finds the Motion shall be DENIED.
Factual and Procedural Background
Mr. Upton initially filed applications for disability insurance benefits and
supplemental security income benefits on February 13, 2015, which were denied.
(Administrative Record “AR” 24, 89, 105). He then retained counsel on May 24, 2019,
and instituted an action in this Court, seeking judicial review of the Commissioner’s denial
of his application for disability insurance benefits and supplemental security income.
(Doc. 1); (Doc. 19 at 1). On April 23, 2020, the Court granted Mr. Upton’s request for
relief, and remanded the case to the Commissioner for further proceedings. (Doc. 40).
On January 8, 2021, upon remand, the Commissioner determined Mr. Upton was
disabled, entered a fully favorable decision, and awarded him past-due benefits in the
amount of $201,598.00, with continuing monthly benefits of $2,545.00. (Doc. 44-1 at 1);
(Doc. 44-2 at 2, 4). The Commissioner notified Mr. Upton that the Social Security
Administration had withheld $50,399.50 from his total benefit payment pending an award
of attorney fees pursuant to 42 U.S.C. § 406(b), which constituted twenty-five percent of
total backpay benefits. (Doc. 44-2 at 4).
On April 16, 2021, the Court awarded Mr. Upton attorney fees in the amount of
$31,920.00 pursuant to 42 U.S.C. § 406(b). (Doc. 48 at 6). Mr. Upton’s counsel now
requests that the Court reconsider its decision and award him the full amount he
requested in his Unopposed Petition for Determination of Attorney’s Fees [Pursuant] to
42 USC § 406(B), (Doc. 44), for a total of $44.399.50. (Doc. 49 at 8). He argues that his
extraordinary success in this case “was not a matter of luck,” but was instead the result of
“deliberate strategic decisions” and skillful briefing. (Doc. 49 at 4). He argues that his
“thirteen years of exceptional training and experience” renders him “as good as far more
experienced attorneys,” and contends that his hourly rate of $973.67 is thus reasonable
under the statute. Id. at 5.
Courts may grant a motion to reconsider when (1) there is an intervening change
in the controlling law, (2) new evidence previously unavailable becomes available, or (3)
there exists a need to correct clear error or prevent manifest injustice. Brumark Corp. v.
Samson Resources Corp., 57 F.3d 941, 948 (10th Cir.1995). Reconsideration is
warranted where the court has clearly misapprehended the facts, a party's position, or
the controlling law, but not in order to revisit issues already addressed in prior filings. See
Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir.1991); Servants of Paraclete
v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000).
Here, Mr. Upton’s counsel’s Motion does not rely on an intervening change of law,
nor does he offer any previously unavailable evidence. (Doc. 49 at 1). Instead, he asks
that the Court reconsider its decision “to avoid manifest injustice.” Id.
When the Court considered Mr. Upton’s counsel’s Unopposed Petition for
Determination of Attorney’s Fees [Pursuant] to 42 USC § 406(B), (Doc. 44), the Court
acknowledged that counsel provided Mr. Upton with quality representation, stating that
“counsel obtained a fully favorable decision for Mr. Upton upon remand. . . . [and] won
Mr. Upton an award of $201,598.00 in back benefits, with continuing monthly benefits of
$2,545.00.” (Doc. 48 at 4). The Court then found Mr. Upton’s counsel’s 45.6 hours of
representation were reasonable, given the precedent in this District and that the briefing
in this case was more complicated than the typical Social Security case. See (Doc. 36);
However, the Court’s role as an “independent check” does not end there.
Gisbrecht v. Barnhart, 535 U.S. 789, 809 (2002) (stating that the controlling statute
“instructs courts to review for reasonableness” fees yielded by contingent-fee
agreements). The Court found that counsel’s requested fee of $44,399.50 for 45.6 hours
of work, which amounted to an hourly rate of $973.67, was at the higher end of this
District’s range. See (Doc. 48 at 5); see, e.g., Molina v. Saul, 1:17-cv-1151 KRS, 2020
WL 7183569 (D.N.M. Dec. 7, 2020) (hourly rate of $294.12); Reid v. Saul, 1:16-cv-1104
SMV, 2020 WL 1049747 (D.N.M. Mar. 3, 2020) (hourly rate of $425.44). The Court
further found, despite the quality of counsel’s representation, that the contingency fee
was disproportionately large in comparison to the amount of time counsel spent on the
case, and thus the Court downwardly adjusted counsel’s hourly rate to $700. See (Doc.
Despite counsel’s contention that Gisbrecht v. Barnhart precludes courts from
“us[ing] the Lodestar method for determining whether attorney’s fees are reasonable[,]”
the Tenth Circuit has stated that consideration of the hourly rate is permissible under
But Gisbrecht held only that the § 406(b) determination must begin with the
contingent fee[;] it did not hold that considerations relevant to the lodestar, such as
hours and hourly rate, were excluded from the subsequent test for
reasonableness. Indeed, the [Gisbrecht] Court specifically noted that a record of
the hours spent representing the claimant and a statement of the lawyer's normal
hourly billing charge for noncontingent-fee cases may be required as an aid to the
[district] court's assessment of the reasonableness of the fee yielded by the fee
Russell v. Astrue, 509 F. App'x 695, 697 (10th Cir. 2013) (quoting Gisbrecht, 535 U.S. at
808) (quotation marks omitted); see (Doc. 49 at 3). The Court’s analysis of the
reasonableness of counsel’s fees, with reference to his effective hourly rate, was thus
Moreover, while the Court recognizes that counsel won Mr. Upton an award of
$201,598.00 in back benefits with relatively high continuing monthly benefits of
$2,545.00, the value of this award resulted solely from Mr. Upton’s underlying eligibility
for benefits—namely, his earnings record. (Doc. 44-2 at 2, 4); see Rodriquez v. Bowen,
865 F.2d 739, 747 (6th Cir. 1989) (“[a]lthough . . . there are cases where the lawyer's
unusual skill or diligence wins the case, typically the number of hours that are required to
prosecute an appeal from the Secretary's determination will not vary greatly and will bear
little if any relationship to the results achieved.”). In other words, here, as in other Social
Security cases, counsel’s quality of representation affected the success or failure of the
case, but it did not affect the value of the award.
Further, while counsel was not responsible for any meaningful delay and does not
stand to “profit from the accumulation of benefits during the pendency of the case in
court” as a result of his own inaction, he is in the analogous situation of gaining a windfall
from a previously high-earning claimant. See Gisbrecht, 535 U.S. at 808. Nevertheless,
the Court found it reasonable to award counsel an hourly fee of $700.00 instead of a
more typical rate of $300.00 or $400.00, given the primacy of lawful attorney-client fee
agreements. (Doc. 48 at 5); Gisbrecht, 535 U.S. at 808; see, e.g., Molina, 2020 WL
7183569 (hourly rate of $294.12); Reid, 2020 WL 1049747 (hourly rate of $425.44). The
Court’s downward adjustment of counsel’s fees was thus proper. Gisbrecht, 535 U.S. at
808 ("[i]f the benefits are large in comparison to the amount of time counsel spent on the
case, a downward adjustment is . . . in order.").
Next, Mr. Upton’s counsel argues that this Court should award him an hourly rate
of $973.67 because it awarded a less experienced attorney an hourly rate of $1,025 in
Baca v. Saul. (Doc. 49 at 6). Indeed, in Baca v. Saul, this Court awarded the plaintiff’s
counsel an hourly rate of $1,025.00. Baca v. Saul, 1:17-cv-449 CG, 2020 WL 871547, at
*2 (D.N.M. Feb. 21, 2020) (Doc. 24 at 4). However, there, the attorney who requested
attorney fees did so on behalf of another more senior attorney at her firm, who at that
time had thirty-three years of experience and had worked all the hours reported for that
case. Id. (Doc. 22-1 at 19). The Court found such an hourly rate warranted given the
experience of the attorney who had worked on the case. Baca, 2020 WL 871547, at *2;
see also Chavez v. Saul, 1:20-cv-210 CG, 2021 WL 1978611, at *2 (D.N.M. May 18,
2021) (awarding fees where two different attorneys of the same firm worked on a case
under different federal index numbers). Mr. Upton’s counsel’s reliance on Baca v. Saul is
Finally, counsel argues that the Court’s prior Order effectively requires counsel to
work “seventeen more years before his twenty-five percent contingency fee agreement
is approved.” (Doc. 49 at 6). This Order, as well as the Court’s previous Order, is specific
to the facts of this case, and thus does not preclude counsel from seeking a higher hourly
rate in the future, upon a showing of reasonableness in the initial motion, based on the
particular facts of that case. Therefore, given the foregoing, the Court finds that Mr.
Upton’s counsel has failed to show any clear error or manifest injustice in the Court’s
IT IS THEREFORE ORDERED that Movant’s Motion to Reconsider, (Doc. 49), is
IT IS SO ORDERED.
THE HONORABLE CARMEN E. GARZA
CHIEF UNITED STATES MAGISTRATE JUDGE
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