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Armstrong v. Astrue

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


April 8, 2008

MAXINE E. ARMSTRONG, PLAINTIFF,
v.
MICHAEL J. ASTRUE, DEFENDANT.

The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER DENYING WITHOUT PREJUDICE MOTION FOR ATTORNEYS' FEES PURSUANT TO 42 U.S.C. § 406(B)

This is an action for judicial review of the final administrative decision of the Commissioner of Social Security denying Plaintiff a period of Disability Insurance Benefits and Supplemental Security Income Benefits under Title II and Title XVI of the Social Security Act, 42 U.S.C. § § 416, 423. On January 11, 2006, the court issued an order denying Plaintiff's motion for summary judgment, denying Defendant's cross-motion for summary judgment, and remanding the case to the Social Security Administration for further findings. After remand, the court granted the parties' joint motion (labeled a stipulation) awarding Plaintiff's counsel, Thomas G. Roche, $4,000.00 in attorneys' fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d). (Doc. no. 15 (Mar. 20, 2006).) Plaintiff now moves for attorneys' fees under 42 U.S.C. § 406(b).

An award of fees under § 406(b) must be reasonable. See 42 U.S.C. § 406(b)(1)(A) ("the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits"); Gisbrecht v. Barnhart, 535 U.S. 789 (2002). Plaintiff has failed to make a sufficient showing of reasonableness because her motion lacks proper documentation and support. For example, her attorney failed to file a declaration, affidavit, or other admissible evidence supporting his assertion that he spent 28.64 hours on the case. See Gisbrecht, 535 U.S. at 808 (court may require record of hours spent representing claimant and statement of normal hourly billing rate for non-contingent fee cases). The motion contains numerous other unsupported or insufficiently-supported assertions, including the claim that $13,220.50 represents 25 percent of past-due benefits she received at some unknown point after remand.

Accordingly, the court DENIES the motion without prejudice to a future showing of reasonableness in a properly-supported and -documented motion for attorneys' fees under § 406(b).

IT IS SO ORDERED.

20080408

© 1992-2008 VersusLaw Inc.



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