Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
ALEX GARCIA,
Plaintiff,
v. 	Civ. No. 24-1010 SCY
FRANK BISIGNANO,
Commissioner of Social Security,
Defendant.
ORDER GRANTING MOTION FOR ATTORNEY FEES
THIS MATTER comes before the Court on Plaintiff’s Motion For Authorization Of
Attorney Fees Pursuant To 42 U.S.C. § 406(b), Doc. 19. Plaintiff’s counsel requests a fee award
of $22,979.50. The Commissioner is not a party to § 406(b) fee awards. 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, she plays a part in the fee determination resembling that of a
trustee for the claimants”). Having considered the motion and the relevant law, the Court grants
Plaintiff’s motion.
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 Agency 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 court proceedings, a court 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.
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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). 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). If the available agency withholding is
less than the amount awarded to counsel under § 406(b), counsel must look to the claimant rather
than the agency to recover the difference. See Wrenn ex rel. Wrenn v. Astrue, 525 F.3d 931, 933
(10th Cir. 2008).
Although § 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 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. Id. at 807 n.17. In acting as an “an independent check” to ensure that fees
are reasonable, there is no presumption that 25% of the past-due benefits is reasonable. Id. at 807
n.17.
Counsel bears the burden of demonstrating the reasonableness of the fees. Id. at 807. The
reasonableness determination is “based on the character of the representation and the results the
representative achieved.” Id. at 808. Factors relevant to the reasonableness of the fee request
include: (1) the character of the representation and the results the representative achieved; (2)
whether the attorney was responsible for any delay; and (3) whether the contingency fee is
disproportionately large in comparison to the amount of time spent on the case. Id. “If the
benefits are large in comparison to the amount of time counsel spent on the case, a downward
adjustment is similarly in order. In this regard, the court may require the claimant’s attorney to
submit, not as a basis for satellite litigation, but as an aid to the court’s assessment of the
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reasonableness of the fee yielded by the fee agreement, a record of the hours spent representing
the claimant and a statement of the lawyer’s normal hourly billing charge for noncontingent-fee
cases.” Id.
REASONBLENESS DETERMINATION
The fee request is reasonable. It falls within the statutorily mandated cap of 25% of past
due benefits. The request is timely and there is no evidence that counsel delayed in the
proceedings before this Court. Counsel’s representation was more than adequate, requiring a
high degree of skill in this specialized area of law, and yielded a fully favorable decision from
the agency.
The fee request is not disproportionately large in comparison to the amount of time spent
on the case. Counsel represents that he and his staff spent 40.2 hours on the case in federal court.
Doc. 19 at 5. This equates to an hourly rate of $571.63 if the request for fees is granted in full,
which is reasonable. This analysis does not reflect a lodestar computation, but takes into account
the Supreme Court’s instructions to consider whether the request is disproportionately large in
comparison to the amount of time spent on the case. Gisbrecht, 535 U.S. at 808. The Court is
appreciative of the high risk involved in Social Security litigation for plaintiffs’ counsel in
general, recognizes that the field is highly specialized, and finds that the number of hours spent
on this case reflects the efficiency, skill, and experience of Plaintiff’s attorneys. The Court also
notes that this award is in line with others authorized in this District under § 406(b). Fewell v.
O’Malley, No. 21cv398 KG-SCY, 2024 WL 3446525, at *2 (D.N.M. June 27, 2024) (collecting
cases), report and recommendation adopted, 2024 WL 3444334 (D.N.M. July 16, 2024).
IT IS THEREFORE ORDERED that Plaintiff’s Motion is GRANTED. The Court
hereby authorizes $22,979.50 in attorney fees for legal services rendered in the United States
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District Court, payable to Konoski & Partners, P.C., to be paid from the claimant’s past-due
benefits. Counsel must refund to Plaintiff any EAJA fees that were not previously garnished
under the Treasury Offset Program.
_________________________________________
United States Magistrate Judge
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