Green v. Commissioner of Social Security

Filing 29

FINDINGS and RECOMMENDATIONS recommending that 28 the Motion for Attorney's Fees be Granted and Plaintiff's counsel be ordered to refund to Plaintiff $6,006.99 of the Section 406(b) fees awarded as an offset for EAJA fees previously awarded. Matter referred to Judge Ishii. Objections to F&R due within fourteen (14) days; signed by Magistrate Judge Sheila K. Oberto on 2/27/2013. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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GWENDOLYN GREEN,
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Plaintiff,
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v.
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MICHAEL J. ASTRUE,
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Commissioner of Social Security,
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Defendant.
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_____________________________________ )

Case No.: 1:10-cv-00935-AWI-SKO

FINDINGS AND RECOMMENDATIONS
THAT THE MOTION FOR
ATTORNEY'S FEES PURSUANT TO 42
U.S.C. § 406(b) BE GRANTED
OBJECTIONS DUE: 14 DAYS
(Doc. 28)

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I.

INTRODUCTION

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On December 19, 2012, counsel for Plaintiff, Sengthiene Bosavanh, Esq., filed a motion for

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an award of attorney's fees pursuant to 42 U.S.C. § 406(b). (Doc. 28.) Plaintiff Gwendolyn Green

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("Plaintiff") and Defendant were each served with Plaintiff's counsel's motion, but no opposition or

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response was filed. See generally Grisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002). For the

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reasons set forth below, the Court RECOMMENDS that Ms. Bosavanh's motion for an award of

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attorney's fees be GRANTED.

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II.

BACKGROUND

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Plaintiff brought the underlying action seeking judicial review of a final administrative

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decision denying her claim for disability benefits under the Social Security Act. (Doc. 1.) On

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September 29, 2011, the ALJ's decision was reversed, and the case was remanded to the agency for

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further consideration. (Docs. 20, 21.) Plaintiff filed a motion for an award of Equal Access to

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Justice Act ("EAJA") fees (Doc. 23), which was unopposed by the Commissioner. On May 11,

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2012, Plaintiff was awarded EAJA fees in the amount of $6,006.99. (Doc. 27.)

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Ms. Bosavanh now seeks an award of attorney's fees in the amount of $20,001.50 pursuant

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to section 406(b). Ms. Bosavanh filed a declaration in support of the motion for attorney's fees

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stating that, on remand, the Commissioner awarded Plaintiff benefits finding her disabled since

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October 28, 2004. (Doc. 28, ¶ 4; Doc. 27-2, p. 11.) On December 3, 2012, the Commissioner issued

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a notice that retroactive disability benefits were awarded to Plaintiff totaling $80,006.00. (Doc. 28,

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3:6-9; Doc. 28-3, p. 3) It is Ms. Bosavanh's Section 406(b) motion for attorney's fees that is

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currently pending before the Court.

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III.

DISCUSSION

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Pursuant to the Social Security Act, attorneys may seek a reasonable fee for cases in which

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they have successfully represented social security claimants.1 Section 406(b) provides the following

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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, and the Commissioner of Social Security may . . . certify
the amount of such fee for payment to such attorney out of, and not in addition to, the
amount of such past-due benefits . . . .

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42 U.S.C. § 406(b)(1)(A) (emphasis added). "In contrast to fees awarded under fee-shifting

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provisions such as 42 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits

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awarded; the losing party is not responsible for payment." Crawford v. Astrue, 586 F.3d 1142, 1147

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(9th Cir. 2009) (en banc) (citing Grisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The

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Commissioner has standing to challenge the award, despite the fact that the Section 406(b) attorney's

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fee award is not paid by the government. Craig v. Sec'y Dep't of Health & Human Servs., 864 F.2d

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324, 328 (4th Cir. 1989), abrogated on other grounds in Grisbrecht, 535 U.S. at 807. The goal of

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fee awards under Section 406(b) is to provide adequate incentive to represent claimants while

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ensuring that the usually meager disability benefits received are not greatly depleted. Cotter v.

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Ms. Bosvanh is not entitled to an award of attorney's fees for any time spent on this case at the administrative
level. Compare 42 U.S.C. § 406(b) with 42 U.S.C. § 406(a).

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Bowen, 879 F.2d 359, 365 (8th Cir. 1989), abrogated on other grounds in Grisbrecht, 535 U.S. at

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807.

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The twenty-five percent (25%) maximum fee is not an automatic entitlement, and courts are

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required to ensure that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808-09 (Section

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406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, Section

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406(b) instructs courts to review for reasonableness fees yielded by those agreements). "Within the

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25 percent boundary . . . the attorney for the successful claimant must show that the fee sought is

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reasonable for the services rendered." Id. at 807; see also Crawford, 586 F.3d at 1148 (holding that

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Section 406(b) "does not specify how courts should determine whether a requested fee is reasonable"

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but "provides only that the fee must not exceed 25% of the past-due benefits awarded").

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Generally, "a district court charged with determining a reasonable fee award under

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§ 406(b)(1)(A) must respect 'the primacy of lawful attorney-client fee arrangements,' . . . 'looking

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first to the contingent-fee agreement, then testing it for reasonableness.'" Crawford, 586 F.3d at 1148

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(quoting Gisbrecht, 535 U.S. at 793, 808). The United States Supreme Court has identified several

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factors that may be considered in determining whether a fee award under a contingent-fee agreement

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is unreasonable and therefore subject to reduction by the court: (1) the character of the

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representation; (2) the results achieved by the representative; (3) whether the attorney engaged in

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dilatory conduct in order to increase the accrued amount of past-due benefits; (4) whether the

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benefits are large in comparison to the amount of time counsel spent on the case; and (5) the

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attorney's record of hours worked and counsel's regular hourly billing charge for non-contingent

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cases. Id. (citing Gisbrecht, 535 U.S. at 807-08).

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Here, the fee agreement between Plaintiff and her counsel provides for a fee consisting of "25

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(twenty five) percent of the past-due benefits resulting from [Plaintiff's] claim or claims." (Doc. 28-

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1. p. 1.) The Court has considered the character of counsel's representation of Plaintiff and the

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results achieved by counsel. The Court's order on Plaintiff's EAJA application found that Plaintiff's

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counsel reasonably expended a total of 34.05 hours litigating Plaintiff's case. (See Docs. 26, 27.)

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There is no indication that a reduction of the award is warranted due to any substandard performance

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by Plaintiff's counsel; counsel secured a successful result for Plaintiff. There is also no evidence that

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Ms. Bosavanh engaged in any dilatory conduct resulting in excessive delay. Attorney's fees in the

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amount of $20,001.50 represent 25% of the past-due benefits paid to Plaintiff and are not excessive

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in relation to the past-due award. See generally Taylor v. Astrue, No. 1:06-cv-00957-SMS, 2011 WL

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836740, at *2 (E.D. Cal. Mar. 4, 2011) (granting petition for an award of attorney's fees pursuant to

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Section 406(b) in the amount of $20,960.00); Jamieson v. Astrue, No. 1:09-cv-00490-LJO-DLB,

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2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011) (recommending an award of attorney's fees pursuant

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to Section 406(b) in the amount of $34,500.00); Logan-Laracuente v. Astrue, No. 1:07-cv-00983-

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SMS, 2010 WL 4689519, at *2 (E.D. Cal. Nov. 10, 2010) (granting petition for attorney's fees

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pursuant to Section 406(b) in the amount of $23,558.62).

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In making this determination, the Court recognizes the contingent-fee nature of this case and

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counsel's assumption of risk in agreeing to represent Plaintiff under such terms. See Hearn v.

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Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003) ("Because attorneys like Mr. Sackett contend

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with a substantial risk of loss in Title II cases, an effective hourly rate of only $450 in successful

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cases does not provide a basis for this court to lower the fee to avoid a 'windfall.'" (quoting

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Grisbrecht, 535 U.S. at 807)). Further, counsel has submitted billing statements in support of the

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requested fee, which were thoroughly reviewed by the Court. (See Docs. 26, 27.)

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An award of Section 406(b) fees, however, must be offset by any prior award of attorney's

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fees granted under the EAJA. 28 U.S.C. § 2412; Grisbrecht, 535 U.S. at 796. Plaintiff's counsel has

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already been awarded $6,006.99 in fees pursuant to the EAJA, and thus any Section 406(b) fees

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awarded must be offset by $6,006.99, and that amount must be refunded to Plaintiff.

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IV.

CONCLUSION AND RECOMMENDATION

For the reasons stated above, the Court concludes that the fees sought by Mr. Bosavanh
pursuant to Section 406(b) are reasonable.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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Plaintiff's counsel's motion for an award of attorney's fees pursuant to Section 406(b)
in the amount of $20,001.00 be GRANTED; and

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Plaintiff's counsel be ordered to refund to Plaintiff $6,006.99 of the Section 406(b)

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fees awarded as an offset for EAJA fees previously awarded pursuant to 28 U.S.C. § 2412(d).

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These findings and recommendations are submitted to the district judge assigned to this

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action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court's Local Rule 304. Within fourteen

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(14) days of service of this recommendation, any party may file written objections to these findings

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and recommendations with the Court and serve a copy on all parties. Such a document should be

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captioned "Objections to Magistrate Judge's Findings and Recommendations." The district judge

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will review the magistrate judge's findings and recommendations pursuant to 28 U.S.C.

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§ 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may

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waive the right to appeal the district judge's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
ie14hj

February 27, 2013

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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