Cox v. Astrue

Filing 45

ORDER that Plaintiff's 43 Motion for Attorney Fees is GRANTED in the amount of $7,210.75. Counsel shall refund the previously awarded EAJA fee of $5,572.85 to Plaintiff. Signed by Magistrate Judge Michelle H Burns on 8/16/2013.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Plaintiff,
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vs.
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Carolyn W. Colvin, Commissioner of the)
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Social Security Administration,
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Defendant.
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Hilary K. Cox,

CIV 09-8177-PCT-MHB
ORDER

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Pending before the Court is Plaintiff Hilary K. Cox’s Motion for Award of Attorney’s

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Fees pursuant to 42 U.S.C. § 406(b) (Doc. 43). Defendant has not responded to Plaintiff’s

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Motion.

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Plaintiff filed an application for disability insurance benefits pursuant to Title II of the

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Social Security Act on April 6, 2004. (Transcript of Administrative Record (“Tr.”) at 101-

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03.) She alleged disability since July 30, 2002, (Tr. at 101, 622), due to migraine headaches,

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fibromyalgia, chronic fatigue, depression, anxiety, residual pain from back surgery to correct

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scoliosis, (Tr. at 112-21, 162-69), and numbness in her hands and fingers (Tr. at 176). Her

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application was denied initially and on reconsideration. (Tr. at 60-61, 80-82, 84-88.) On

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February 11, 2005, she requested a hearing before an Administrative Law Judge (“ALJ”).

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(Tr. at 79.) A hearing was held on February 13, 2007, (Tr. at 542-83), followed by a

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supplemental hearing on February 20, 2007 (Tr. at 584-617). On March 22, 2007, an ALJ

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issued a decision in which he found that Plaintiff was not disabled. (Tr. at 62-76.) Plaintiff

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requested review of the ALJ’s decision. (Tr. at 89.) The Appeals Council granted Plaintiff’s

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request and remanded the ALJ’s decision for further administrative proceedings. (Tr. at 97-

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100.) Specifically, the Appeals Council ordered that the ALJ give further consideration to

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Plaintiff’s residual functional capacity during the period at issue and obtain supplemental

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evidence from a vocational expert to clarify the effect of her limitations on her occupational

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base. (Tr. at 97-100.)

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On September 12, 2008, another hearing was held at which Plaintiff, her attorney, and

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a vocational expert were present. (Tr. at 618-60.) On December 18, 2008, an ALJ issued a

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decision in which he found that Plaintiff was not disabled. (Tr. at 20-32.) Plaintiff requested

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review of the ALJ’s decision. (Tr. at 18.) The Appeals Council denied Plaintiff’s request,

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(Tr. at 9-12), thereby rendering the ALJ’s decision the final decision of the Commissioner.

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Plaintiff sought judicial review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g). The

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Court, after reviewing the administrative record and the arguments of the parties, reversed

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the decision of the ALJ and remanded for a determination of benefits. (Doc. 27.)

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On June 16, 2011, Plaintiff sought $8,762.85 in attorney’s fees under the Equal

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Access to Justice Act (EAJA) (Doc. 29). The Court awarded $5,572.85 in fees (Doc. 41).

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Plaintiff now seeks an award of $7,210.75 under 42 U.S.C. § 406(b) (Doc. 43).

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Plaintiff retained counsel under a contingency fee agreement providing for payment

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to counsel of 25 percent of the past due benefits awarded to Plaintiff. Under 42 U.S.C. §

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406(b)(1)(A), “[w]henever a court renders a judgment favorable to a claimant ... who was

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represented before the court by an attorney, the court may determine and allow as part of its

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judgment a reasonable fee for such representation, not in excess of 25 percent of the total of

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the past-due benefits[.]” Although Section 406(b) “does not displace contingent-fee

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agreements” that fall within the 25 percent statutory maximum, the Court does “review for

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reasonableness fees yielded by those agreements.” Gisbrecht v. Barnhart, 535 U.S. 789, 808

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(2002). In determining whether the fee sought is “reasonable for the services rendered[,]”

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id. at 807, the Court may consider the character of the representation, the results achieved,

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

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case. See Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009). A reduction in fees may
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be warranted if the “benefits are large in comparison to the amount of time counsel spent on

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the case[,]” or the attorney “is responsible for delay ... so that the attorney will not profit from

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the accumulation of benefits during the pendency of the case in court.” Gisbrecht, 535 U.S.

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at 808.

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Here, Plaintiff’s counsel requests a § 406(b) award in the amount of $7,210.75.

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Counsel performed 31.9 hours of work, which results in an hourly rate of $257.94. This rate

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is not presumptively unreasonable; indeed, courts have found much higher hourly rates to be

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reasonable. See, e.g., Grunseich v. Barnhart, 439 F.Supp.2d 1032, 1035 (C.D. Cal. 2006)

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(awarding $600 hourly rate). In light of the contingency fee agreement, and accounting for

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the risk inherent in contingency fee arrangements, the proportionality of the award, and

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counsel’s successful representation of Plaintiff, the Court finds the amount sought is

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reasonable. The Court will award Plaintiff $7,210.75 under § 406(b), which will be offset

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by the previously awarded EAJA fee. See Gisbrecht, 535 U.S. at 796 (noting that although

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Congress permits fee awards under both the EAJA and § 406(b), “the claimant’s attorney

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must refund to the claimant the amount of the smaller fee”).

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

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Fees pursuant to 42 U.S.C. § 406(b) (Doc. 43) is GRANTED in the amount of $7,210.75.

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Counsel shall refund the previously awarded EAJA fee of $5,572.85 to Plaintiff.

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DATED this 16th day of August, 2013.

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