Cockren v. Commissioner of Social Security

Filing 33

ORDER REGARDING 30 MOTION for ATTORNEY FEES GRANTED in the amount of $9,000.00. This amount should be payable directly to the Law Offices of Lawrence D. Rohlfing. Upon payment, counsel is directed to refund $3,600.00 to plaintiff. Order signed by Magistrate Judge Dennis L. Beck on 2/21/2012. (Hernandez, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ELZO COCKREN,
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Plaintiff,
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v.
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MICHAEL J. ASTRUE, Commissioner
of Social Security,

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Defendant.

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1:09cv0169 DLB

ORDER REGARDING MOTION FOR
ATTORNEY FEES PURSUANT TO 42 U.S.C.
§ 406(b)
(Document 30)

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Petitioner Denise Bourgeois Haley (“Counsel”), attorney for Plaintiff Elzo Cockren, filed

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the instant motion for fees on December 12, 2011. Counsel requests fees in the amount of

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$9,000.00 pursuant to 42 U.S.C. § 406(b)(1).

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Defendant did not file an opposition.

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BACKGROUND
Plaintiff filed this action on January 12, 2009. On July 14, 2010, the Court found that the

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underlying decision of the Administrative Law Judge (“ALJ”) was not supported by substantial

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evidence. The Court reversed the ALJ’s decision and remanded the case for further proceedings.

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Pursuant to the Court’s order, the Clerk of the Court entered judgment in favor of Plaintiff.

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On October 12, 2010, the Court granted the parties’ stipulation for attorney’s fees

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pursuant to the Equal Access to Justice Act (“EAJA”), along with costs, in the total amount of

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$3,600.00.

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On September 21, 2011, ALJ Robert Milton Erickson issued a decision finding Plaintiff
disabled since January 18, 2006. Exhibit 2, attached to Application. Pursuant to the ALJ’s
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decision, the Commissioner issued a Notice of Award on October 20, 2011. Exhibit 3, attached

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to Motion; Exhibit 1, attached to Notice of Errata. The Notice indicates that Plaintiff is entitled

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to past-due monthly benefits totaling $64,645.60.

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By this motion, Counsel seeks an award of $9,000 for 24.6 hours of attorney time.1 This

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amount represents slightly more than 13.9% percent of the past-due award. After crediting

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$3,600.00 received previously pursuant to the EAJA, Counsel requests a net fee of $5,400.00

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from the past-due award.

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DISCUSSION
42 U.S.C. § 406(b)(1)(A) provides in relevant part:

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Whenever a court renders a judgment favorable to a claimant under this subchapter 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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In Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002), the Supreme Court explained that a

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district court reviews a petition for section 406(b) fees “as an independent check” to assure that

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contingency fee agreements between claimants and their attorneys will “yield reasonable results

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in particular cases.” The Court must respect “the primacy of lawful attorney-client fee

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agreements,” id. at 793, “looking first to the contingent-fee agreement, then testing it for

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reasonableness.” Id. at 808; see also Crawford v. Astrue, 586 F.3d 1142 (9th Cir. 2009).

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Agreements are not enforceable to the extent that they provide for fees exceeding 25 percent of

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the past-due benefits. Gisbrecht, 535 U.S. at 807. “Within the 25 percent boundary. . . the

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attorney for the successful claimant must show that the fee sought is reasonable for the services

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rendered.” Id.

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In determining the reasonableness of an award, the district court should consider the

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character of the representation and the results achieved. Id. at 808. Ultimately, an award of

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section 406(b) fees is offset by an award of attorney’s fees granted under the EAJA. 28 U.S.C. §

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2412; Gisbrecht, 535 U.S. at 796.

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Counsel submitted a detailed billing statement. Exhibit 4, attached to Motion.

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In Crawford v. Astrue, the Ninth Circuit recently suggested factors that a district court

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should examine under Gisbrecht in determining whether the fee was reasonable. In determining

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whether counsel met their burden to demonstrate that their requested fees were reasonable, the

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Court noted that (1) no reduction in fees due to substandard performance was warranted, and the

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evidence suggested that counsels’ performance was nothing other than excellent; (2) no reduction

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in fees for dilatory conduct was warranted, as the attorneys in these cases caused no excessive

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delay which resulted in an undue accumulation of past-due benefits; and (3) the requested fees,

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which were significantly lower than the fees bargained for in the contingent-fee agreements, were

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not excessively large in relation to the benefits achieved and when taking into consideration the

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risk assumed in these cases. Crawford, 586 F.3d at 1151-1152.

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Here, there is no indication that a reduction of fees is warranted for substandard

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performance. Counsel is an experienced, competent attorney who secured an extremely

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favorable result for Plaintiff. There is no indication that Counsel engaged in any dilatory conduct

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resulting in excessive delay. Finally, Counsel requests an amount equal to approximately 13.9%

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percent contingent-fee that Plaintiff agreed to at the outset of the representation. Exhibit 1,

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attached to Motion. The $9,000 fee ($5,400.00 net fee after subtracting the previously awarded

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EAJA fee) is not excessively large in relation to the past-due award of $64,645.60. In making

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this determination, the Court recognizes the contingent nature of this case and Counsel’s

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assumption of the risk of going uncompensated. Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037

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(N.D. Cal. 2003).

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ORDER

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Based on the foregoing, Counsel’s section 406(b) Motion is GRANTED in the amount of

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$9,000.00. This amount should be payable directly to the Law Offices of Lawrence D. Rohlfing.

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Upon payment, Counsel is directed to refund $3,600.00 to Plaintiff.

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IT IS SO ORDERED.
Dated:
3b142a

February 21, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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