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)

Download PDF
1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 ) ) ) Plaintiff, ) ) vs. ) Carolyn W. Colvin, Commissioner of the) ) Social Security Administration, ) ) Defendant. ) Hilary K. Cox, CIV 09-8177-PCT-MHB ORDER 15 Pending before the Court is Plaintiff Hilary K. Cox’s Motion for Award of Attorney’s 16 Fees pursuant to 42 U.S.C. § 406(b) (Doc. 43). Defendant has not responded to Plaintiff’s 17 Motion. 18 Plaintiff filed an application for disability insurance benefits pursuant to Title II of the 19 Social Security Act on April 6, 2004. (Transcript of Administrative Record (“Tr.”) at 101- 20 03.) She alleged disability since July 30, 2002, (Tr. at 101, 622), due to migraine headaches, 21 fibromyalgia, chronic fatigue, depression, anxiety, residual pain from back surgery to correct 22 scoliosis, (Tr. at 112-21, 162-69), and numbness in her hands and fingers (Tr. at 176). Her 23 application was denied initially and on reconsideration. (Tr. at 60-61, 80-82, 84-88.) On 24 February 11, 2005, she requested a hearing before an Administrative Law Judge (“ALJ”). 25 (Tr. at 79.) A hearing was held on February 13, 2007, (Tr. at 542-83), followed by a 26 supplemental hearing on February 20, 2007 (Tr. at 584-617). On March 22, 2007, an ALJ 27 issued a decision in which he found that Plaintiff was not disabled. (Tr. at 62-76.) Plaintiff 28 requested review of the ALJ’s decision. (Tr. at 89.) The Appeals Council granted Plaintiff’s 1 request and remanded the ALJ’s decision for further administrative proceedings. (Tr. at 97- 2 100.) Specifically, the Appeals Council ordered that the ALJ give further consideration to 3 Plaintiff’s residual functional capacity during the period at issue and obtain supplemental 4 evidence from a vocational expert to clarify the effect of her limitations on her occupational 5 base. (Tr. at 97-100.) 6 On September 12, 2008, another hearing was held at which Plaintiff, her attorney, and 7 a vocational expert were present. (Tr. at 618-60.) On December 18, 2008, an ALJ issued a 8 decision in which he found that Plaintiff was not disabled. (Tr. at 20-32.) Plaintiff requested 9 review of the ALJ’s decision. (Tr. at 18.) The Appeals Council denied Plaintiff’s request, 10 (Tr. at 9-12), thereby rendering the ALJ’s decision the final decision of the Commissioner. 11 Plaintiff sought judicial review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g). The 12 Court, after reviewing the administrative record and the arguments of the parties, reversed 13 the decision of the ALJ and remanded for a determination of benefits. (Doc. 27.) 14 On June 16, 2011, Plaintiff sought $8,762.85 in attorney’s fees under the Equal 15 Access to Justice Act (EAJA) (Doc. 29). The Court awarded $5,572.85 in fees (Doc. 41). 16 Plaintiff now seeks an award of $7,210.75 under 42 U.S.C. § 406(b) (Doc. 43). 17 Plaintiff retained counsel under a contingency fee agreement providing for payment 18 to counsel of 25 percent of the past due benefits awarded to Plaintiff. Under 42 U.S.C. § 19 406(b)(1)(A), “[w]henever a court renders a judgment favorable to a claimant ... who was 20 represented before the court by an attorney, the court may determine and allow as part of its 21 judgment a reasonable fee for such representation, not in excess of 25 percent of the total of 22 the past-due benefits[.]” Although Section 406(b) “does not displace contingent-fee 23 agreements” that fall within the 25 percent statutory maximum, the Court does “review for 24 reasonableness fees yielded by those agreements.” Gisbrecht v. Barnhart, 535 U.S. 789, 808 25 (2002). In determining whether the fee sought is “reasonable for the services rendered[,]” 26 id. at 807, the Court may consider the character of the representation, the results achieved, 27 performance, delay, and whether the benefits were proportionate to the time spent on the 28 case. See Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009). A reduction in fees may -2- 1 be warranted if the “benefits are large in comparison to the amount of time counsel spent on 2 the case[,]” or the attorney “is responsible for delay ... so that the attorney will not profit from 3 the accumulation of benefits during the pendency of the case in court.” Gisbrecht, 535 U.S. 4 at 808. 5 Here, Plaintiff’s counsel requests a § 406(b) award in the amount of $7,210.75. 6 Counsel performed 31.9 hours of work, which results in an hourly rate of $257.94. This rate 7 is not presumptively unreasonable; indeed, courts have found much higher hourly rates to be 8 reasonable. See, e.g., Grunseich v. Barnhart, 439 F.Supp.2d 1032, 1035 (C.D. Cal. 2006) 9 (awarding $600 hourly rate). In light of the contingency fee agreement, and accounting for 10 the risk inherent in contingency fee arrangements, the proportionality of the award, and 11 counsel’s successful representation of Plaintiff, the Court finds the amount sought is 12 reasonable. The Court will award Plaintiff $7,210.75 under § 406(b), which will be offset 13 by the previously awarded EAJA fee. See Gisbrecht, 535 U.S. at 796 (noting that although 14 Congress permits fee awards under both the EAJA and § 406(b), “the claimant’s attorney 15 must refund to the claimant the amount of the smaller fee”). 16 IT IS THEREFORE ORDERED that Plaintiff’s Motion for Award of Attorney’s 17 Fees pursuant to 42 U.S.C. § 406(b) (Doc. 43) is GRANTED in the amount of $7,210.75. 18 Counsel shall refund the previously awarded EAJA fee of $5,572.85 to Plaintiff. 19 DATED this 16th day of August, 2013. 20 21 22 23 24 25 26 27 28 -3-

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?