Manola v. Kijakazi

Filing 42

MEMORANDUM DECISION AND ORDER granting 39 MOTION for Attorney Fees. Signed by Magistrate Judge Daphne A. Oberg on 1/6/2025. (alf)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
NORTHERN DIVISION
KENNETH M.,

MEMORANDUM DECISION AND
ORDER GRANTING MOTION FOR
ATTORNEY’S FEES PURSUANT TO
42 U.S.C. § 405(b)
(DOC. NO. 39)

Plaintiff,
v.
CAROLYN W. COLVIN, Acting
Commissioner of the Social Security
Administration,

Case No. 1:20-cv-00045
Magistrate Judge Daphne A. Oberg

Defendant.

Plaintiff Kenneth M.’s 1 attorney, Matthew McGarry (“Counsel”), has filed a Motion
for Attorney’s Fees pursuant to 42 U.S.C. § 406(b). 2 Counsel seeks an award of
attorney’s fees pursuant to 42 U.S.C. § 406(b) in the amount of $20,740.50. 3 The
Commissioner does not oppose the petition. 4 For the reasons explained below, the
court grants the motion.
BACKGROUND
On April 21, 2020, Mr. M. hired Counsel, who is an attorney at Olinsky Law
Group, on a contingent-fee basis to represent him in his claims against the Social

1 Pursuant to best practices in the District of Utah addressing privacy concerns in court

orders in certain cases, including social security cases, the court refers to Plaintiff by his
first name and last initial only.

2 (“Mot.,” Doc. No. 39.)
3 (See Att’y’s Affirmation in Supp. of Fees (“Att’y Affirmation”) ¶ 7, Doc. No. 39-1.)
4 (See Comm’r’s Resp. to Pl.’s Pet. For Att’y’s Fees Under 42 U.S.C. § 406(b), Doc. No.

40.)

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Security Administration (“SSA”). 5 In the written contingent-fee agreement, Mr. M. and
Counsel agreed the contingency fee would be twenty-five percent of the past-due
benefits awarded to Mr. M. 6
Counsel filed this action for judicial review of the SSA’s denial of benefits on April
27, 2020. 7 On September 10, 2021, the court remanded the case to the Commissioner
for further proceedings. 8 Mr. M. then sought $5,600.00 in attorney’s fees under the
Equal Access to Justice Act (“EAJA”). 9 The court granted the motion and awarded Mr.
M. the requested amount of $5,600.00 in EAJA fees, payable to counsel. 10
After the case was remanded, the SSA provided notice that Mr. M. had been
awarded past-due benefits, and that it was withholding $27,940.50—representing
twenty-five percent of the award—in anticipation of a fee request. 11
On October 21, 2024, Counsel filed this petition asking the court to authorize,
pursuant to 42 U.S.C. § 406(b), payment of $20,740.50 in fees for his firm’s

5 (See Att’y Affirmation ¶¶ 1, 3, Doc. No. 39-1; Ex. A to Mot., Fee Agreement, Doc. No.

39-2.)

6 (See Att’y Affirmation ¶ 3, Doc. No. 39-1; Ex. A to Mot., Fee Agreement, Doc. No. 39-

2.)

7 (See Compl., Doc. No. 3.)
8 (See J. in a Civ. Action, Doc. No. 29.)
9 (See Stip. Mot. for Award of Att’y Fees Pursuant to the Equal Access to Justice Act,

Doc. No. 31.)

10 (Order Granting Stip. Mot. for Award of Att’y Fees Pursuant to the Equal Access to

Justice Act, Doc. No. 33.)

11 (See Att’y Affirmation ¶ 4, Doc. No. 39-1; Ex. B to Mot., Important Information Letter,

Doc. No. 39-3.)

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representation of Mr. M. before this court. 12 The billing records Counsel submitted
indicate 24.3 hour of attorney time and 6.7 hours of paralegal time were logged for work
on Mr. M.’s case before this court. 13 Counsel explains his fee request translates to an
hourly rate of $100 for paralegal time and $825.94 for attorney time. 14 Counsel further
indicates that the $5,600.00 EAJA fee award will be refunded to Mr. M. upon payment of
the requested fee amount under 42 U.S.C. § 406(b). 15
Counsel affirmed Mr. M. would receive a copy of the motion for attorney fees. 16
Mr. M. has not responded or objected to the motion. The Commissioner filed a
response taking no position on the motion. 17
ANALYSIS
Section 406(b) provides that an attorney who successfully represents a Social
Security claimant may be awarded “a reasonable fee . . . not in excess of 25 percent of
the total of the past-due benefits.” 18 In Gisbrecht v. Barnhart, 19 the Supreme Court
indicated that section 406(b) requires district courts to review contingent-fee

12 (Mot., Doc. No. 39; Att’y Affirmation, Doc. No. 39-1.)
13 (Att’y Affirmation ¶ 9, Doc. No. 39-1; Exs. C–E to Mot., Ledgers, Doc. Nos. 39-4–

39-6.)

14 (Atty’ Affirmation ¶ 9, Doc. No. 39-1.)
15 (Id. at 2.)
16 (Id. ¶ 12.)
17 (See Comm’r’s Resp. to Pl.’s Pet. For Att’y’s Fees Under 42 U.S.C. § 406(b), Doc.

No. 40.)

18 42 U.S.C. § 406(b)(1)(A).
19 535 U.S. 789 (2002).

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agreements “as an independent check, to assure that they yield reasonable results in
particular cases.” 20 The Court noted that within the twenty-five percent boundary set by
Congress, “the attorney for the successful claimant must show that the fee sought is
reasonable for the services rendered.”21 District courts must assess the
reasonableness of the contingent-fee agreement and may reduce the amount of fees
where warranted. 22
The Court provided several examples of what would cast doubt on the
reasonableness of the contingent-fee agreement and merit a reduced fee. First, the fee
award may be reduced “based on the character of the representation and the results the
[attorney] achieved.”23 Second, “[i]f the attorney is responsible for delay . . . a reduction
is in order so that the attorney will not profit from the accumulation of benefits during the
pendency of the case in court.”24 Third, “[i]f the benefits are large in comparison to the
amount of time counsel spent on the case, a downward adjustment is similarly in
order.” 25
Here, Counsel’s fee request does not exceed the twenty-five percent threshold.
Nevertheless, pursuant to Gisbrecht, the court examines whether the fee request is
reasonable. First, based on the record in this case, the character of Counsel’s

20 Id. at 807.
21 Id.
22 Id. at 808.
23 Id.
24 Id.
25 Id.

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representation of Mr. M. and the results achieved were not substandard. Counsel’s
work before this court resulted in remand of the case to the Commissioner, and a
significant award of past-due benefits for Mr. M. at the administrative level. Second,
there is no indication Counsel delayed pursuing Mr. M.’s claims. Counsel filed this case
less than a week after being retained and complied with all briefing deadlines.
Next, Counsel’s fee request is not unreasonable compared to the amount of time
spent on the case. As explained above, the fee request translates to an hourly rate of
$825.94 for attorney time. 26 This is within the range which courts have found
reasonable—though it approaches the high end of that range. 27 This hourly rate is also
reasonable considering Counsel assumed the risk of not receiving any fees under the
contingent-fee agreement. 28 Finally, Counsel’s petition is unopposed—further indicating
the requested fees are reasonable and warranted.
CONCLUSION
For the reasons explained above, the requested fee is reasonable under the
contingent-fee agreement between Counsel and Mr. M. Therefore, the court authorizes
Counsel to receive a § 406(b) fee award of $20,740.50. In addition, because fees have

26 (See Att’y Affirmation ¶ 9, Doc. No. 39-1.)
27 See, e.g., Gulbransen v. Colvin, 2015 U.S. Dist. LEXIS 55176, at *4 (D. Utah Apr. 27,

2015) (unpublished) (granting a § 406(b) fee request resulting in an hourly rate of
$862.88, an “amount [that] is on the high-end of what the Court would find to be
reasonable,” where there was no other basis to find the fee unreasonable).

28 See Faircloth v. Barnhart, 398 F. Supp. 2d 1169, 1174 (D.N.M. 2005) (finding

§ 406(b) attorney fee award translating to an hourly rate of $510.25 reasonable,
particularly “when that fee is considered in conjunction with a Social Security lawyer’s
risk of loss”).
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been awarded under both § 406(b) and the EAJA, Counsel must refund the lesser of the
two fees to Mr. M. (which in this case, are those fees awarded under the EAJA). 29
Accordingly, the court orders as follows:
1.

Counsel’s Motion for Attorney’s Fees 30 pursuant to 42 U.S.C. § 406(b) is

granted. Counsel is awarded § 406(b) fees in the amount of $20,740.50, payable to
Matthew McGarry.
2.

Counsel must refund to Mr. M. the previous EAJA fee award of $5,600.00

upon payment of the § 406(b) award.
DATED this 6th day of January, 2025.
BY THE COURT:

________________________________
Daphne A. Oberg
United States Magistrate Judge

29 See Gisbrecht, 535 U.S. at 796 (recognizing that “[f]ee awards may be made under

both [EAJA and § 406(b)], but the claimant’s attorney must refund to the claimant the
amount of the smaller fee.” (internal quotation marks and alteration omitted)).
30 (Doc. No. 39.)

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