Case Name in Social Security Case - Unavailable

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MICHAEL GONZALES,
Plaintiff,
v. 	No. 2:23-cv0578 DLM
FRANK BISIGNANO,
Commissioner of the Social
Security Administration,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER is before the Court on Plaintiff Michael Gonzales’s Motion for
Authorization of Attorney Fees Pursuant to 42 U.S.C. § 406(b). (Doc. 23.) Gonzales seeks
$16,401.00 in attorney’s fees based on 32.1 hours of work at a rate of roughly $510.93 per hour.1
(See id. at 1; Doc. 23-1 at 12.) The Commissioner responded and confirmed he “neither supports
nor opposes” the requested fee. (See Doc. 25 at 1.) Having considered the record, submissions of
counsel, and relevant law, the Court will GRANT the motion.
I. 	Relevant Background
Gonzales filed applications for disability insurance benefits (DIB) and supplemental
security income (SSI) with the Social Security Administration on September 16, 2019, alleging a
disability onset date of May 27, 2017. (Administrative Record2 (AR) at 292, 299.) Disability
Determination Services (DDS) denied his application initially and on reconsideration, and
1 This hourly rate is an approximation, as 1.5 hours of the total hours worked were performed by a paralegal. (See
Doc. 23-1 at 12.) The Court did not account for the paralegal’s lower hourly rate when calculating this figure.
2 Document 9 contains the sealed Administrative Record. (Docs. 9-2–9-9.) The Court cites the Administrative
Record’s internal pagination, rather than the CM/ECF document number and page.
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Administrative Law Judge (ALJ) Susan Smoot issued an unfavorable decision finding Gonzales
not disabled. (Id. at 10–24, 98–181.) Gonzales filed suit in this Court on July 11, 2023. (Doc. 1.)
After he filed a Memorandum in Support of Motion for Judgment on the Pleadings (Doc. 12-3),
the Commissioner filed an Unopposed Motion for Remand pursuant to sentence four of 42 U.S.C.
§ 405(g) (Doc. 18), which the Court granted (Doc. 19).
On remand, an ALJ found Gonzales disabled. (See Doc. 23 at 2.) In its Notice of Award,
the Social Security Administration informed Gonzales that it was withholding 25 percent of his
past due benefits—or $24,401.00—to pay his representative. (See Doc. 23-1 at 4.) The Court
previously granted attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C.
§ 2412, in the amount of $7,000.00. (See Doc. 22.)
Gonzales now asks the Court to award his attorney’s firm, Konoski & Partners, P.C., a fee
of $16,401.00, which is approximately 16.8 percent of Gonzales’s total past-due benefits, minus
the $7,000 EAJA fee award.3 (Id. at 1, 5.) Konoski & Partners, P.C. has represented Gonzales
since 2023. (See Doc. 23-1 at 12.) Two attorneys (Bryan Konoski and Jason Quick) and one
paralegal (Daniel Gardner) from the firm have worked on Gonzales’s case. (See id.) Konoski and
Quick collectively worked 30.6 hours, and Gardner worked 1.5 hours. (See id.)
II. 	Legal Standard
Attorneys who litigate on behalf of “Social Security claimants may receive fee awards
under both the EAJA and 42 U.S.C. § 406.” See Ortega v. Kijakazi, No. 1:20-cv-1245 GBW, 2023
WL 372878, at *2 (D.N.M. Jan. 24, 2023). An attorney who receives a fee award under both the
3 $24,401 (25 percent of the past due benefit award) x 4 = $97,604.
$16,401 / $97,604 = 16.8%.
The Commissioner asks the Court to assess the reasonableness of the requested fee based on the full fees sought
($16,401), rather than the net award after offset ($9,401). (See Doc. 25 at 2.) The Court has assessed the reasonableness
of the request based on the full amount requested.
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EAJA and § 406(b) “must refund the smaller award to the claimant.” Id. at *2 n.2 (citing Weakley
v. Bowen, 803 F.2d 575, 580 (10th Cir. 1986)). Fees may be awarded by the Court under § 406(b)
on receipt of past-due benefits. Id. at *2 (citing McGraw v. Barnhart, 450 F.3d 493, 497 (10th Cir.
2006)). In awarding fees, the Court is guided “by two conditions: a 25 percent cap and a
reasonableness standard.” Id. Section 406(b)(1)(A) provides that fees may not exceed 25 percent
of the total past-due benefits awarded to a plaintiff following a favorable judgment. See id. “This
cap applies ‘only to fees for court representation, and not to the aggregate fees awarded under
§§ 406(a) and (b).’” Id. (quoting Culbertson v. Berryhill, 139 S. Ct. 517, 523 (2019)). The Court
is further directed to award “reasonable” fees. See id. (citing 42 U.S.C. § 406(b)(1)(A)). It is the
burden of the claimant’s attorney to show the requested fee is reasonable. Id. (citing Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002)).
To determine whether a requested fee award is reasonable, the Court examines “the
character of the representation and the results the representative achieved.” Id. (quoting Gisbrecht,
535 U.S. at 808). The Court may “consider factors such as (1) whether the representation was
substandard, (2) whether the attorney was responsible for any delay that caused benefits to accrue,
and (3) whether the benefits are large in comparison to the amount of time counsel spent on the
case.” Id. (citing Gisbrecht, 535 U.S. at 808; Gordon v. Astrue, 361 F. App’x 933, 935 (10th Cir.
2010)). With respect to the third factor, the Court guards against a windfall award by comparing
the requested fee to other awards in this district. See id. (citing Gisbrecht, 535 U.S. at 808).
III. 	Analysis
Gonzales requests a fee of $16,401, which is approximately 16.8 percent of his total past-
due benefits and lower than the 25% cap permitted under § 406(b). (See Doc. 23 at 2–3.) He further
asks the Court to reduce the award by $7,000.00 for a net total fee of $9,401.00. (See id. at 1.)
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The Court finds the representation was adequate, as Gonzales received a favorable
decision. (See id. at 2.) There is no evidence that counsel delayed the proceedings. Gonzales’s
attorneys, who are experienced in this area, spent 30.6 hours on this matter, which appears to be
reasonable. (See Doc. 23-1 at 12.) See also Martinez v. Colvin, No. 1:15-cv-0806 LF, 2016 WL
9774938, at *2 (D.N.M. Nov. 30, 2016) (gathering cases). Lastly, the time spent and fee award are
both reasonable and on par with others in this district. See Ortega, 2023 WL 372878, at *3–4
(awarding $599 per hour and gathering cases in support). Considering the foregoing, I find the fee
request is reasonable and appropriate.
IT IS HEREBY ORDERED that Gonzales’s Motion for Authorization of Attorney Fees
Pursuant to 42 U.S.C. § 406(b) (Doc. 23) is GRANTED and that the Court authorize $9,401.004
($16,401.00 minus the $7,000.00 EAJA fee award, in accordance with Gisbrecht, 535 U.S. at 796.)
in net attorney fees for legal services rendered in this Court, to be paid by the Social Security
Administration out of Gonzales’s past-due benefits in accordance with agency policy.
_______________________________________
DAMIAN L. MARTINEZ
UNITED STATES MAGISTRATE JUDGE
Presiding by Consent
4 If for some reason the full award ($16,401) is paid, the Court directs counsel to refund to Gonzales the EAJA fee of
$7,000.00 previously awarded by this Court in accordance with Gisbrecht, 535 U.S. at 796.
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