Turchetta v. Colvin

Filing 34

ORDER: IT IS THEREFORE ORDERED granting Turchetta's Motion for Attorney's Fees (Doc. 31 ). IT IS FURTHER ORDERED granting Turchetta's counsel's request for $17,521.25. Further, Turchetta's counsel shall, after the rece ipt of this award, refund to Plaintiff Pauline R. Turchetta the lesser of any fee awarded under 42 U.S.C. § 406(b) and any fees awarded under the Equal Access to Justice Act [see attached Order for details]. Signed by Magistrate Judge Deborah M Fine on 7/10/18. (MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Pauline R. Turchetta,

No. CV-16-3244-PHX-DMF

Plaintiff,

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v.

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Commissioner of Social Security
Administration,

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ORDER

Defendant.

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Currently pending before the Court is Plaintiff Pauline Turchetta’s Attorney’s

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Motion for an Award of Attorney’s Fees brought pursuant to 42 U.S.C. § 406(b) (Doc. 31).

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Turchetta’s attorney requests $17,521.25, and contends it is justified by the fee agreement

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entered into between Turchetta and her attorney on January 20, 2015, and that the amount

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is reasonable for the services rendered according to the guidelines set out in Gisbrecht v.

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Barnhart, 535 U.S. 789, 807 (2002). (Doc. 31) Defendant has no objection to this request.

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(Doc. 32)

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BACKGROUND

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Turchetta filed a complaint for judicial review of the Social Security

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Administration’s determination denying his claim for disability benefits and sought a

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remand for an award of benefits. (Doc. 1) At the conclusion of briefing, the Court agreed.

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(Doc. 27) The Court has previously granted Turchetta’s attorney fees under the Equal

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Access to Justice Act (“EAJA”) in the amount of $6,610.32. (Doc. 30)

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The Court reviews a contingent-fee arrangement under Section 406(b) to determine

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whether the amount is reasonable for the services rendered.

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evaluating the reasonableness of the contingent-fee agreement, after it determines that the

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amount does not exceed 25% of the award, the Court may consider whether (1) a claimant’s

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counsel is responsible for delay, or (2) “the benefits are large in comparison to the amount

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of time spent on the case.” Id. at 808. The Court may review “a record of the hours spent

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representing the claimant and a statement of the lawyer's normal hourly billing charge for

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noncontingent-fee cases.” Id.

Gisbrecht, supra.

In

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The Court’s independent review concludes that the fees are reasonable. First, there

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is no suggestion that counsel delayed this matter beyond reasonable requests for additional

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time to file a reply brief. (Docs. 17, 19) Second, the Court has already approved counsel’s

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award under EAJA; the Court will not re-examine the hours spent and the normal billing

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rate. Third, the EAJA offset results in Turchetta actually paying out-of-pocket much less

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than 25% of past-due benefits. Finally, because civil actions for Social Security disability

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benefits have a significant risk of loss, the effective hourly rate is not unreasonable.

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Finally, the Commissioner objected to granting fees for work performed at the

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administrative level because those fees are only available under Section 406(a). (Doc. 32)

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The Court notes that the motion is titled as a request for fees under Section 406(b) and was

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expanded, via footnote, to include Section 406(a). (Doc. 31 at 2, n.2) Although counsel

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has not used the most explicit method for invoking Section 406(a)’s entitlement to

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administrative-level fees, the Court will consider the pending Motion as one under 42

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U.S.C. § 406(a) and (b).

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IT IS THEREFORE ORDERED granting Turchetta’s Motion for Attorney’s Fees

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(Doc. 31).

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IT IS FURTHER ORDERED granting Turchetta’s counsel’s request for

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$17,521.25. Further, Turchetta’s counsel shall, after the receipt of this award, refund to

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Plaintiff Pauline R. Turchetta the lesser of any fee awarded under 42 U.S.C. § 406(b) and

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any fees awarded under the Equal Access to Justice Act.

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Dated this 10th day of July, 2018.

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