Kimberly Gates v. Carolyn W Colvin

Filing 30

ORDER by Magistrate Judge Kenly Kiya Kato: granting 28 MOTION for Attorney Fees. Fees awarded in favor of Kimberly Gates against Carolyn W Colvin in the amount of $25,082.25 with a reimbursement to Plaintiff for EAJA fees previously awarded in the amount of $3,300. (dts)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7

CENTRAL DISTRICT OF CALIFORNIA

8
9
10

KIMBERLY GATES,
Plaintiff,

11
v.

12
13
14

Case No. EDCV 14-0020-KK
ORDER GRANTING MOTION FOR
ATTORNEY FEES PURSUANT TO
42 U.S.C. § 406(B)

NANCY A. BERRYHILL1, Acting
Commissioner of Social Security,
Defendant.

15
16
17

I.

18

INTRODUCTION

19

Plaintiff Kimberly Gates’s (“Plaintiff’s”) counsel, Erika Bailey Drake of

20

Drake & Drake, P.C. (“Counsel”), filed a Motion for Attorney’s Fees Pursuant to

21

42 U.S.C. § 406(b) (“Motion”). The Motion seeks an award in the amount of

22

$25,082.25 for representing Plaintiff in an action to obtain Supplemental Security

23

Income (“SSI”) and Disability Insurance Benefits (“DIB”), with a refund to

24

Plaintiff of $3,300.00 for the Equal Access to Justice Act (“EAJA”) fees previously

25

awarded.

26
27
28

1 Nancy A. Berryhill is now the Acting Commissioner of the Social Security
Administration. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure,
the Court substitutes Nancy A. Berryhill as Defendant in the instant case.

1

The parties have consented to the jurisdiction of the undersigned United

2

States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons stated

3

below, the Court grants the Motion.

4

II.

5

RELEVANT BACKGROUND

6

On January 13, 2014, Plaintiff filed the Complaint in this action. See ECF

7

Docket No. (“Dkt.”) 3, Compl. Plaintiff alleged defendant Carolyn B. Colvin,

8

Acting Commissioner of Social Security (“Defendant”) improperly denied

9

Plaintiff’s applications for SSI and DIB. Id. at 2-3. On October 15, 2014, the Court

10

found Defendant erred in denying Plaintiff benefits, and entered Judgment

11

reversing and remanding the case to Defendant for further administrative

12

proceedings. Dkt. 25, Judgment.

13
14
15

On December 22, 2014, the Court awarded Counsel EAJA fees in the
amount of $3,300.00. Dkt. 27, Order Granting EAJA Fees.
On June 30, 2017, pursuant to 42 U.S.C. § 406(b), Counsel filed the instant

16

Motion seeking the amount of $25,082.25 for representing Plaintiff in the

17

underlying proceedings before the Court. Dkt. 28, Mot. In the Motion, Counsel

18

states she “will refund to Plaintiff EAJA fees previously awarded in the amount of

19

$3,300.” Id. at 1. According to Counsel, 17.7 hours of attorney time were

20

expended on Plaintiff’s case. Itemized Hours, Dkt. 28, Ex. 3. Counsel, therefore,

21

seeks compensation pursuant to a contingency fee agreement stating Plaintiff “will

22

pay representative a fee equal to the lesser of 25% of [Plaintiff’s] past-due benefits

23

or the dollar amount established pursuant to 42 USC Section 206(a)(2)(A), which

24

is currently set at, $6,000, but may be increased from time to time by the

25

Commissioner of Social Security.” Contingency Fee Agreement, Dkt. 28, Ex. 2.

26

On June 30, 2017, Plaintiff was served with the Motion and informed she had

27

a right to file a response to the Motion. Dkt. 25, Mot. at 2, 9. Plaintiff failed to file

28

a timely response. On July 6, 2017, Defendant filed a Non-Opposition to the
2

1

Motion stating she “has no objection to the fee request.” Dkt. 29, Non-Opposition

2

at 4. Thus, the Court deems this matter submitted.

3

III.

4

DISCUSSION

5

A.

APPLICABLE LAW

6

Pursuant to 42 U.S.C. § 406(b) (“Section 406(b)”):

7

Whenever a court renders a judgment favorable to a claimant under

8

this subchapter who was represented before the court by an attorney,

9

the court may determine and allow as part of its judgment a reasonable

10

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

11

the past-due benefits to which the claimant is entitled by reason of

12

such judgment, and the Commissioner of Social Security may . . .

13

certify the amount of such fee for payment to such attorney out of, and

14

not in addition to, the amount of such past-due benefits.

15

42 U.S.C. § 406(b)(1)(A). Thus, “a prevailing [disability] claimant’s [attorney’s]

16

fees are payable only out of the benefits recovered; in amount, such fees may not

17

exceed 25 percent of past-due benefits.” Gisbrecht v. Barnhart, 535 U.S. 789, 792,

18

122 S. Ct. 1817, 152 L. Ed. 2d 996 (2002).

19

Where a claimant entered into a contingent fee agreement with counsel, a

20

court must apply Section 406(b) “to control, not to displace, fee agreements

21

between Social Security benefits claimants and their counsel.” Id. at 793. A court

22

should not use a “lodestar method,” under which a district court “determines a

23

reasonable fee by multiplying the reasonable hourly rate by the number of hours

24

reasonably expended on the case.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th

25

Cir. 2009) (en banc) (citation omitted). Rather, where the claimant and counsel

26

entered into a lawful contingent fee agreement, courts that use the “lodestar”

27

method as the starting point to determine the reasonableness of fees requested

28

under Section 406(b) improperly “reject the primacy of lawful attorney-client fee
3

1

agreements.” Gisbrecht, 535 U.S. at 793. Thus, courts should not apply lodestar

2

rules in cases where the claimant and counsel reached a contingent fee agreement

3

because:

4

[t]he lodestar method under-compensates attorneys for the risk they

5

assume in representing [social security] claimants and ordinarily

6

produces remarkably smaller fees than would be produced by starting

7

with the contingent-fee agreement. A district court’s use of the

8

lodestar to determine a reasonable fee thus ultimately works to the

9

disadvantage of [social security] claimants who need counsel to
recover any past-due benefits at all.

10
11

Crawford, 586 F.3d at 1149.

12

However, even in contingency fee cases, a court has “an affirmative duty to

13

assure that the reasonableness of the fee [asserted by counsel] is established.” Id.

14

The court must examine “whether the amount need be reduced, not whether the

15

lodestar amount should be enhanced.” Id. The court may consider factors such as

16

the character of the representation, the results achieved, the ratio between the

17

amount of any benefits awarded and the time expended, and any undue delay

18

attributable to counsel that caused an accumulation of back benefits in determining

19

whether a lawful contingent fee agreement is reasonable. See Gisbrecht, 535 U.S.

20

at 808; Crawford, 586 F.3d at 1151.

21

B.

22

ANALYSIS
Here, Counsel seeks a reasonable fee under Section 406(b). Plaintiff

23

retained Counsel to represent her in federal court in her appeal from the

24

administrative denial of benefits, and agreed to pay Counsel a contingency fee of

25

twenty-five percent of any past due benefits obtained. See Contingency Fee

26

Agreement, Dkt. 28, Ex. 2. Consideration of the factors set forth in Gisbrecht and

27

Crawford warrants no reduction of the fee Counsel seeks.

28
4

The record discloses no issue regarding the quality or efficiency of Counsel’s

1
2

representation before this Court, or any misconduct or delay by Counsel. Counsel

3

obtained a favorable outcome for Plaintiff, ultimately resulting in a remand for

4

further administrative proceedings and an award of past due benefits. See Dkt. 25,

5

Judgment; Notice of Award, Dkt. 28, Ex. 1. Further, the 17.7 hours expended to

6

litigate this case was reasonable and within the approved range for social security

7

disability cases. See Patterson v. Apfel, 99 F. Supp. 2d 1212, 1214 & n.2 (C.D. Cal.

8

2000) (noting that “a survey of several dozen cases in which attorney’s fees were

9

awarded in social security cases suggests that the 33.75 hours spent by plaintiff’s

10

counsel falls within the approved range”).

11

In addition, a fee of $25,082.25 based on 17.7 hours of attorney time is

12

reasonable. See Itemized Hours, Dkt. 28, Ex. 3. The Court finds Counsel’s

13

effective hourly rate of approximately $1,417.08 reasonable under the

14

circumstances. Dkt. 28 at 5; see Villa v. Astrue, 2010 WL 118454, at *1-2 (E.D.

15

Cal. Jan. 7, 2010) (approving Section 406(b) fees exceeding $1,000.00 per hour,

16

and noting “[r]educing [Section] 406(b) fees after Crawford is a dicey business”).

17

Further, post-Gisbrecht decisions have approved contingent fee agreements

18

yielding hourly rates greater than the rate Counsel seeks. See, e.g., Daniel v.

19

Astrue, 2009 WL 1941632, at *2-3 (C.D. Cal. July 2, 2009) (approving fees

20

amounting to $1,491.25 per hour). Hence, in light of the hours Counsel expended,

21

the Section 406(b) fee award amount Counsel requests does not represent an unfair

22

windfall to Counsel.
Finally, nothing in the record suggests any overreaching in the making of the

23
24

fee agreement or any impropriety on the part of Counsel in representing Plaintiff.

25

Counsel assumed the risk of nonpayment inherent in a contingency agreement and

26

Counsel’s efforts proved successful for Plaintiff. Accordingly, the Court finds the

27

Section 406(b) fees Counsel requests reasonable.

28

///
5

1

IV.

2

ORDER

3

Based on the foregoing, IT IS HEREBY ORDERED: (1) Counsel’s Motion

4

for Attorney Fees Pursuant to 42 U.S.C. § 406(b) is GRANTED; and (2)

5

Defendant is directed to pay Counsel the sum of $25,082.25 with a reimbursement

6

to Plaintiff for EAJA fees previously awarded in the amount of $3,300.

7
8
9
10

Dated: July 21, 2017
HONORABLE KENLY KIYA KATO
United States Magistrate Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6