UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Daniel Moriarty,

Plaintiff

v. Civil No. 07-cv-342-SM

Opinion No. 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

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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 30, 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 twentyfive 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 no. 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 is, 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 no. 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 no. 26) is granted. 

SO ORDERED.

____________________________

Steven J. McAuliffe

Chief Judge

April 1, 2010

cc: Raymond J. Kelly, Esq.

T. David Plourde, Esq.

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