Moriarty v . SSA 07-CV-342-SM 04/01/10
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Daniel Moriarty,
Plaintiff
v. Civil N o . 07-cv-342-SM
Opinion N o . 2010 DNH 055
Michael Astrue, Commissioner,
Social Security Administration,
Defendant
O R D E R
Pending before the court is claimant’s motion seeking
approval of a contingent fee agreement, under the terms of which
his attorney, Raymond J. Kelly, would be paid $19,438.60,
representing twenty-five percent of claimant’s award of past-due
benefits. See generally 42 U.S.C. § 406(b). That motion is
granted.
Discussion
This Social Security benefits case involved both unresolved
(at least in this circuit) questions of law and difficult issues
of proof. Claimant, Daniel Moriarty, is a veteran of the Vietnam
War who served in the military from 1968 to 1970. Among other
things, he acted as an infantry point-man for approximately six
months, and was highly decorated for his military service.
Although the precise onset date of his illness was unclear (and
was at the core of this matter), the record amply demonstrates
that he currently suffers from post-traumatic stress disorder
(“PTSD”) and its chronic symptoms, including anxiety, depression,
nightmares and sleep disturbances, flashbacks, social isolation,
recurrent recollections of traumatic events, and panic attacks.
In fact, the Veterans Administration recognizes that he suffers
from a 100 percent service-related disability.
Beginning in approximately 1993, Moriarty began seeking
Social Security Disability benefits. The problem he faced was
this: notwithstanding his assertion that his mental impairments
became disabling on or before September 3 0 , 1979 (his date last
insured), and despite the retrospective diagnosis offered by his
treating psychiatrist that he was disabled by reason of his PTSD
by 1979 and possibly as early as 1976, there were no medical
records or laboratory findings from the relevant period to
support such a finding. Accordingly, in May of 2007, an
administrative law judge (“ALJ”) concluded that Mr. Moriarty was
not disabled, as that term is defined in the Social Security Act,
at any time through the expiration of his insured status.
Moriarty appealed that decision and, in September of 2008,
the court vacated the Commissioner’s denial of benefits and
remanded the matter to the ALJ for further consideration. A new
hearing was held before an ALJ and, in September of 2009, a
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decision issued establishing January 1 , 1979, as the onset of
Moriarty’s disability - prior to his date last insured. As a
result, Mr. Moriarty was entitled to receive more than $77,000 in
retroactive benefits. Consistent with the parties’ written
contingent fee agreement, Moriarty’s counsel now seeks an award
of attorney’s fees totaling $19,438.60, which represents twenty-
five percent (25%) of Moriarty’s past-due benefits. Moriarty
does not object.
Although the government does not specifically object to
Attorney Kelly’s fee request, it does suggest that his request
for fees is too high and “urges the court to consider the nature
of this case along with the representation provided by Mr. Kelly
in determining whether the attorney fee request, while within the
past-due-benefits-limit, is reasonable for the services
provided.” Defendant’s Response (document n o . 27) at 6.
Applying the analysis suggested by the government, it is plain
that Attorney Kelly’s request for fees is reasonable.
When presented with requests for approval of contingent fee
awards in Social Security cases, this court is obligated to
review such fee requests for reasonableness. See Gisbrecht v .
Barnhart, 535 U.S. 789, 808-09 (2002). Factors the court should
consider include the complexity of the case, the risk assumed by
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counsel in agreeing to represent the claimant, the quality of
legal work provided by counsel, the amount of time he or she
devoted to the case, the nature of the outcome, and whether the
fees requested by counsel would represent a windfall. See Id. at
808. In this case, the government acknowledges that all the
relevant factors weigh in favor of granting the fee request, save
one: whether the requested fee would represent a windfall to
Attorney Kelly.
Noting that the Court of Appeals for the First Circuit has
yet to define “windfall” in the context of a request for fees
under § 406(b), the government urges the court to adopt a
standard articulated by the Court of Appeals for the Sixth
Circuit. That court has held:
[A] windfall can never occur when, in a case where a
contingent fee contract exists, the hypothetical hourly
rate determined by dividing the number of hours worked
for the claimant into the amount of the fee permitted
under the contract is less than twice the standard rate
for such work in the relevant market.
Hayes v . Sec’y of Health & Human Serv., 923 F.2d 418, 422 (6th
Cir. 1990) (footnote omitted).
Here, Attorney Kelly and Mr. Moriarty entered into a written
contingent fee agreement which provided that, under the
circumstances now prevailing in this case, Attorney Kelly would
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be entitled to fees totaling 25% of Moriarty’s award of past-due
benefits, as compensation for his legal work. And, Attorney
Kelly has submitted to the court affidavits attesting to the fact
that the “standard rate for such work in the relevant market,”
Hayes, 923 F.2d at 422, is $250-$300 per hour. Finally, Attorney
Kelly has submitted an affidavit in which he attests that he
spent 44.35 hours on this case. The government does not dispute
any of the foregoing.1
Even applying the formula urged by the government, Attorney
Kelly’s request for $19,438.60 is reasonable. Assuming a
reasonable hourly rate of $250 (the low end of the estimates
provided) and multiplying that figure by the 44.35 hours Attorney
Kelly devoted to this case yields a figure of $11,087.50. Twice
that figure is more than $22,000.00. Attorney Kelly’s request
for $19,438.60 i s , undeniably, less than that amount and, under
the formula urged by the government, it is certainly not a
windfall. In fact, under the circumstances presented in this
case, Attorney Kelly’s fee request is entirely reasonable.
1
In his affidavit, Attorney Kelly notes that the roughly
44 hours of time documented in his filings represents the time he
devoted to this matter in federal court. He apparently spent an
additional 40 hours of time on this matter at the administrative
level (e.g., administrative hearings, Appeals Council review).
See Affidavit of Raymond J. Kelly, Esq. (document n o . 26-5) at
para. 4 .
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In agreeing to represent Mr. Moriarty in his effort to
obtain Social Security disability benefits, Attorney Kelly
assumed a fairly substantial risk (particularly given the
difficulty proving Mr. Moriarty’s onset date and the unresolved
questions of law at issue in this case). Attorney Kelly also
engaged in a substantial amount of work and obtained excellent
results. His request for fees representing 25% of Mr. Moriarty’s
award of past-due benefits is both reasonable and the product of
a freely negotiated contingent fee agreement. There is no reason
to disturb that agreement.
Conclusion
Accordingly, for the reasons set forth above, as well as
those set forth in claimant’s legal memorandum, claimant’s motion
for fees pursuant to 42 U.S.C. § 406(b), in the amount of
$19,439.60, (document n o . 26) is granted.
SO ORDERED.
April 1 , 2010
cc: Raymond J. Kelly, Esq.
T . David Plourde, Esq.
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