Andrade v. Commissioner of Social Security

Filing 37

FINDINGS and RECOMMENDATIONS Granting Counsel's Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) 32 , 36 , signed by Magistrate Judge Jennifer L. Thurston on 4/30/2018.(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LETICIA ANN ANDRADE,
Plaintiff,

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v.

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COMISSIONER OF SOCIAL SECURITY,
Defendant.

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Case No.: 1:10-cv-2148-AWI- JLT
FINDINGS AND RECOMMENDATIONS
GRANTING COUNSEL’S MOTION FOR
ATTORNEY FEES PURSUANT TO
42 U.S.C. § 406(b)
(Doc. 32, 36)

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Sengthiene Bosavanh, counsel for Leticia Ann Andrade, seeks an award of attorney fees

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pursuant to 42 U.S.C. § 406(b) following an award of benefits to Plaintiff. (Docs. 32, 36) Neither

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Plaintiff nor Defendant filed a response to the motion. For the following reasons, the Court

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recommends counsel’s motion for attorney fees be GRANTED.

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I.

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Relevant Background
Plaintiff entered into a contingent fee agreement with the attorneys employed at the Law Offices

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of Jeffrey Milam, including Ms. Bosavanh, on November 15, 2010. (Doc. 32-1 at 1) In relevant part,

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the agreement provided that if the federal court litigation resulted in past-due benefits paid to Plaintiff,

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her attorney would receive “25 (twenty-five) percent of the past-due benefits resulting from [her]

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claim or claims.” (Id., emphasis in original)

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In November 2010, Plaintiff filed a complaint for review of the administrative decision
denying her Social Security benefits. (Doc. 1) The Court determined the administrative law judge
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erred in the evaluating the credibility of Plaintiff’s subjective complaints. (Doc. 24 at 3-4) Therefore,

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the Court remanded the matter for further administrative proceedings pursuant to sentence four of 42

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U.S.C. § 405(g), and judgment was entered in favor of Plaintiff. (Doc. 24 at 4; Doc. 25)

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Following the remand, Plaintiff received a favorable decision. (See Doc. 32-3) The

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Commissioner determined Plaintiff was “entitled to monthly disability benefits from Social Security

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beginning in July 2006,” which totaled $102,960.00. (Id. at 1, 5) From this amount, the Commissioner

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withheld twenty-five percent for payment of Plaintiff’s attorney fees. (Id. at 5)

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II.

An attorney may seek an award of fees for representation of a Social Security claimant who is

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Attorney Fees under § 406(b)

awarded benefits:
Whenever a court renders a judgment favorable to a claimant under [42 USC § 401, et
seq] 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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42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b)

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controls fees awarded for representation of Social Security claimants). A contingency fee agreement

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is unenforceable if it provides for fees exceeding twenty-five percent of past-due benefits. Id. at 807.

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III.

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Discussion and Analysis
District courts “have been deferential to the terms of contingency fee contracts § 406(b) cases.”

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Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). However, the Court must review

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contingent-fee arrangements “as an independent check, to assure that they yield reasonable results in

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particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, the Court should consider “the character of

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the representation and the results the representative achieved.” Id. at 808. In addition, the Court

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should consider whether the attorney performed in a substandard manner or engaged in dilatory

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conduct or excessive delays, and whether the fees are “excessively large in relation to the benefits

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received.” Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc).

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In this case, Plaintiff entered into the contingent fee agreement in which she agreed to pay
twenty-five percent of any awarded retroactive benefits. Ms. Bosavanh accepted the risk of loss in the
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representation while representing Plaintiff before the District Court, and expended 55.5 hours on tasks

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related to the action before the District Court. As a result of counsel’s work before the Court and the

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agency, the matter was remanded for further proceedings before an administrative law judge, who

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issued a fully favorable decision and awarded Plaintiff benefits. For this, Ms. Bosavanh “requests a

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fee of $25,740.00 under the contingency fee contract.” (Doc. 36 at 3)
Significantly, there is no indication Ms. Bosavanh performed in a substandard manner or

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engaged in severe dilatory conduct to the extent that a reduction in fees is warranted. To the contrary,

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Ms. Bosavanh actively advocated on behalf of her client and was able to secure a remand for further

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proceedings, after which Plaintiff was awarded benefits. In addition, there is no evidence that counsel

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engaged in abusive dilatory conduct that would increase the fees significantly, as she requested only a

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single extension of time, which was permitted under the terms of the Court’s Scheduling Order. (See

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Doc. 7 at 4; Doc. 15) The fees are not “excessively large in relation to the benefits received,” but

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rather equal the amount permitted by statute. See Crawford, 586 F.3d at 1149; 42 U.S.C. §

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406(b)(1)(A). Finally, although served with the motion and informed of the right to oppose the fee

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request (see Doc. 36 at 2), Plaintiff did not file an opposition and thereby indicates her belief that the

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fee request is reasonable.

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IV.

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Findings and Recommendations
The Court finds the fees sought by Ms. Bosavanh are reasonable in light of the time expended

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and results achieved. Moreover, the amount requested does not exceed the twenty-five percent

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maximum permitted under 42 U.S.C. §406(b). Based upon the foregoing, the Court RECOMMENDS:

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amount of $25,740.00; and

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The motion for attorney fees pursuant to 24 U.S.C. §406(b) be GRANTED in the

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The Commissioner shall pay the amount directly to Counsel, Sengthiene Bosavanh with
Milam Law, Inc.

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IT IS SO ORDERED.
Dated:

April 30, 2018

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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