Kinzer v. Astrue

Filing 44

ORDER: IT IS ORDERED that Plaintiff's Attorney's Motion for an Award of Attorney Fees under 42 U.S.C. § 406(b) (Doc. 42 ) is GRANTED in the amount of $33,972.75. IT IS FURTHER ORDERED that Plaintiff's counsel must refund the lesser of the EAJA fee award and the § 406(b) fee award to Plaintiff. Signed by Senior Judge James A Teilborg on 7/5/2016. (KAL)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Sheila Kinzer,
Plaintiff,

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ORDER

v.

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No. CV-11-00328-PHX-JAT

Michael J Astrue,

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Defendant.

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Pending before the Court is Plaintiff Sheila Kinzer’s (“Plaintiff”)’s motion for

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attorneys’ fees pursuant to 42 U.S.C. § 406(b). (Doc. 42). The Court now rules on the

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motion.

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I.

Background

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On April 27, 2009, an Administrative Law Judge (“ALJ”) denied Plaintiff’s

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request for social security benefits. (Doc. 11-3 at 22). The Social Security Appeals

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Council denied review of the ALJ’s decision on December 20, 2010. (Doc. 1 at 2). After

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Plaintiff filed an appeal for judicial review of the ALJ’s decision, this Court affirmed the

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ALJ’s decision. (Doc. 23). On June 11, 2012, Plaintiff filed an appeal in the United States

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Court of Appeals for the Ninth Circuit challenging this Court’s affirmance of the ALJ’s

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decision. (Doc. 25). On April 10, 2014, the Ninth Circuit reversed the ALJ’s decision and

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remanded for supplemental proceedings. (Doc. 29-1). After additional proceedings, the

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ALJ determined that Plaintiff is disabled. (Doc. 42-1 at 5–11).

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On August 4, 2014, Plaintiff moved for attorneys’ fees and costs under the Equal

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Access to Justice Act (“EAJA”). (Doc. 33). On April 7, 2015, the Court awarded Plaintiff

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attorneys’ fees and costs in the amount of $19,800.57 pursuant to the EAJA. (Doc. 41).

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On March 7, 2016, Plaintiff filed the pending motion for attorneys’ fees under § 406(b).

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(Doc. 42).

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II.

Analysis

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Section 406(b) provides that whenever the Court renders a favorable judgment to a

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social security claimant, the Court can award reasonable attorneys’ fees for representation

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of the claimant. § 406(b)(1)(A). The reasonable fee cannot exceed twenty-five percent of

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the total past-due benefits awarded to the claimant. Id. The fee is payable out of, and not

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in addition to, the amount of the past-due benefits. Id. Section 406(b) “does not displace

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contingent-fee agreements as the primary means by which fees are set for successfully

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representing Social Security benefits claimants in court. Rather, § 406(b) calls for court

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review of such arrangements as an independent check, to assure that they yield

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reasonable results in particular cases.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).

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To that end, “Congress has provided one boundary line: Agreements are unenforceable to

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the extent that they provide for fees exceeding 25 percent of the past-due benefits.” Id.

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Therefore, the Court must ensure the fee is 1) reasonable, and 2) limited to 25 percent of

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past-due benefits. Id.

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Moreover, the Court must be sure to “respect the primacy of lawful attorney-client

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fee agreements.” Crawford v. Astrue, 586 F.3d 1142, 1150 (9th Cir. 2009) (en banc)

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(internal quotations omitted). While reviewing this agreement, the Court must still test

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the resulting award for reasonableness. Id. at 1149. In other words, “the district court

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must first look to the fee agreement and then adjust downward if the attorney provided

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substandard representation or delayed the case, or if the requested fee would result in a

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windfall.” Id. at 1151. When determining reasonableness, the Court should consider the

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following non-exhaustive factors: the character of the representation, the results achieved,

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performance, delay, whether the benefits were proportionate to the time spent on the case,

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and, as an aid if necessary, the lodestar calculation. Id.

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Plaintiff and her counsel had a contingent-fee agreement in this case typical of fee

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agreements in disability benefit cases. Specifically, the contingent-fee agreement

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provides that attorneys’ fees for Federal Court work “will be equal to the 25% of all past

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due benefits without regard to the maximum statutory allowance.” (Doc. 42-1 at 2).

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Plaintiff was awarded $135,891.00 in past due benefits. (Id. at 6). Twenty-five percent of

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this award is $33,972.75. (Id.) Plaintiff’s counsel requested the full twenty-five percent

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amount, (Doc. 42 at 10), which the Government does not oppose, (Doc. 43)

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Given the factors outlined in Crawford, the Court finds the contingent-fee

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agreement in this case to be reasonable, and thus, will award Plaintiff’s counsel

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attorneys’ fees in the amount of $33,972.75 pursuant to § 406(b). See 586 F.3d at 1151.

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Because Plaintiff was also awarded EAJA fees, (Doc. 41), Plaintiff’s counsel must refund

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the lesser of these two fee awards to Plaintiff, see Gisbrecht, 535 U.S. at 796.

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III.

Conclusion

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Based on the foregoing,

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IT IS ORDERED that Plaintiff’s Attorney’s Motion for an Award of Attorney

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Fees under 42 U.S.C. § 406(b) (Doc. 42) is GRANTED in the amount of $33,972.75.
IT IS FURTHER ORDERED that Plaintiff’s counsel must refund the lesser of
the EAJA fee award and the § 406(b) fee award to Plaintiff.
Dated this 5th day of July, 2016.

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