Lasso v. Astrue

Filing 31

ORDER granting 29 Motion for Attorney Fees. Signed by Judge David G Campbell on 10/20/2015.(DGC, nvo)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael P Lasso,

No. CV-12-02291-PHX-DGC
Plaintiff,

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v.

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ORDER

Carolyn W. Colvin, Commissioner of the
Social Security Administration,

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Defendant.

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Plaintiff’s counsel, Mr. Slepian, has filed a motion for attorney’s fees pursuant to

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42 U.S.C. § 406(b). Doc. 29. Defendant does not oppose the motion. Doc. 30. For the

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reasons stated below, the Court will grant the motion.

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I.

Background.

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On September 10, 2013 the Court ruled in favor of Plaintiff and remanded this

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case to Defendant for an award of benefits. Doc. 21. Plaintiff and his dependents were

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awarded $72,234.00 in past-due benefits. Doc. 29 at 2. Mr. Slepian filed a request for

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attorney’s fees pursuant to EAJA, and the Court awarded $6,931.63. Doc. 28. Pursuant

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to the fee agreement, Mr. Slepian now moves for attorney’s fees under 42 U.S.C.

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§ 406(b), requesting $18,058.50 for 37.2 hours of work. Doc. 29 at 2-3.

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II.

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Legal Standard.
Section 406 provides:
Whenever a court renders a judgment favorable to a claimant . . . who was
represented before the court by an attorney, 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 to which the

claimant is entitled by reason of such judgment[.]

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42 U.S.C. § 406(b)(1)(A).

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In Gisbrecht v. Barnhart, 535 U.S. 789 (2002), the Supreme Court discussed the

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meaning of the term “reasonable fee” in § 406(b). The Court concluded that “§ 406(b)

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does not displace contingent-fee agreements as the primary means by which fees are set

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for successfully representing Social Security benefits claimants in court.” 535 U.S. at

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807. “Rather, § 406(b) calls for court review of such arrangements as an independent

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check, to assure that they yield reasonable results in particular cases.” Id. The Court

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noted that “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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The Court should begin with the fee due under the fee agreement, and then may “reduce

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the fee for substandard performance, delay, or benefits that are not in proportion to the

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time spent on the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009).

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Gisbrecht also established that a claimant’s attorney who has received fees under

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the EAJA and § 406(b) must refund to the claimant the smaller fee award. 535 U.S. at

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796. This offset should be considered when determining whether a requested § 406(b)

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fee is reasonable. Id. at 797.

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III.

Analysis.

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According to the fee agreement, Plaintiff’s counsel is entitled to 25% of the total

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past-due benefits awarded. Doc. 29 at 5. That award equates to an hourly rate of

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$485.44 per hour ($18,058.50/37.2 hours).1 Mr. Slepian has met his burden of proving

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that this is a reasonable fee in light of the services performed.

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First, the fee is within the statutory maximum recovery of 25 percent of past-due

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benefits. See Gisbrecht, 535 U.S. at 807. Second, Mr. Slepian’s representation yielded a

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very favorable result for Plaintiff.

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recovered past-due benefits of $72,234.00 and will continue to receive benefits in the

See Crawford, 586 F.3d at 1151.

Plaintiff has

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Because Mr. Slepian will be required to remit his $6,931.63 EAJA award to
Plaintiff, that award is not included in calculating his effective hourly rate.
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future. Doc. 29 at 10-11. Third, there is nothing in the record to suggest that Mr. Slepian

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did anything to delay the proceeding to increase the past-due benefits. See Crawford, 586

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F.3d at 1151. Fourth, courts have recognized that attorneys working under contingent fee

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agreements in Social Security cases should be permitted to recover a favorable hourly

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rate when they are successful to offset the losses they incur when they are not. See In re

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Wash. Pub. Power Supply Sys. Sec. Litig., 19 F.3d 1291, 1299 (9th Cir. 1994). Fifth, the

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fee requested is not disproportionate with the time spent on this case. Id. Mr. Slepian has

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spent several years on this case. See Doc. 29 at 2-3. Finally, the effective hourly rate is

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below rates that courts have found reasonable for this type of work. See Grunseich v.

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Barnhart, 439 F. Supp. 2d 1032, 1035 (C.D. Cal. 2006) (awarding hourly rate of $600);

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Yarnevic v. Apfel, 359 F. Supp. 2d 1363,1365-67 (N.D. Ga. 2005) (awarding hourly rate

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of $643); Claypool v. Barnhart, 294 F. Supp. 2d 829, 833-34 (S.D. W. Va. 2003)

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(awarding fee equivalent to $1,433 hourly rate); Brown v. Barnhart, 270 F. Supp. 2d 769,

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772-73 (W.D. Va. 2003) (awarding fee equivalent to $977 hourly rate).

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IT IS ORDERED:

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1.

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Counsel’s application for attorney’s fees in the amount of $18,058.50
(Doc. 29) is granted.

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2.

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Dated this 20th day of October, 2015.

Counsel is ordered to remit the EAJA fees of $6,931.63 to Plaintiff.

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