Ortega v. Commissioner of Social Security

Filing 31

ORDER GRANTING Petitioner's Motion for Attorney Fees Pursuant to 42 U.S.C. 406(b), signed by Magistrate Judge Stanley A. Boone on 8/21/2015. (Kusamura, W)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAVON ORTEGA,

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Plaintiff,
v.

Case No. 1:12-cv-01030-AWI-SAB
ORDER GRANTING PETITIONER’S MOTION
FOR ATTORNEY FEES PURSUANT TO 42
U.S.C. § 406(b)

COMMISSIONER OF SOCIAL
SECURITY,

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Defendant.
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Petitioner Sengthiene Bosavanh (“Counsel”), attorney for Plaintiff Lavon Ortega

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(“Plaintiff”), filed the instant motion for attorney fees on June 12, 2015. Counsel requests fees in

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the amount of $24,350.00 pursuant to 42 U.S.C. § 406(b)(1). Plaintiff has not objected to the

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request. On August 13, 2015, Defendant Social Security Commissioner, as a de facto trustee for

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Plaintiff, filed a response to Petitioner’s motion providing an analysis of the fee request.

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I.

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BACKGROUND

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Plaintiff filed the instant complaint challenging the denial of social security benefits on

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June 25, 2012. (ECF No. 1.) On December 20, 2013, the magistrate judge’s order issued finding

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that the ALJ erred in rejecting the opinion of an examining physician regarding Plaintiff’s hand

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limitations. (ECF No. 22.) On January 7, 2015, the district judge adopted the findings and
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recommendations and this action was remanded for further proceedings. (ECF No. 24.) The

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Court entered judgment in Plaintiff’s favor on January 7, 2014. (ECF No. 25.)

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On remand, the ALJ found that Plaintiff was disabled as of June 2007, and past benefits

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were awarded in the amount of $121,400.00. (ECF No. 28-1 at 1.) The Commissioner withheld

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$6,000.00 from the past-due benefit for attorney fees. (ECF No. 28-1 at 4.) Generally, the

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Commissioner withholds 25 percent of the retroactive benefit award. (Id.) However, it appears

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in this instance that only the $6, 000.00 which was paid to Petitioner’s firm may have been

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withheld. (Id.)

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In the instant motion, Petitioner seeks $24,350.00 for 39.6 hours spent working on
Plaintiff’s case.1

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II.

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LEGAL STANDARD

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In relevant part, 42 U.S.C. § 406(b)(1)(A) provides that when a federal court “renders a

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judgment favorable to a claimant . . . who was represented before the court by an attorney,” the

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court may allow reasonable attorney fees “not in excess of 25 percent of the total of the past-due

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benefits to which the claimant is entitled by reason of such judgment.” The payment of such

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award comes directly from the claimant’s benefits. 42 U.S.C. § 406(b)(1)(A).

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The Supreme Court has explained that a district court reviews a petition for section 406(b)

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fees “as an independent check” to assure that the contingency fee agreements between the

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claimant and the attorney will “yield reasonable results in particular cases.”

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Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful

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attorney-client fee agreements,” and is to look first at the contingent-fee agreement, and then test

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it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009). Agreements

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seeking fees in excess of twenty-five percent of the past-due benefits awarded are not

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enforceable. Crawford, 586 F.3d at 1148. The attorney has the burden of demonstrating that the

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fees requested are reasonable. Gisbrecht, 535 U.S. at 808; Crawford, 586 F.3d at 1148.

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Gisbrecht v.

Petitioner does not indicate the number of hours spent by Mr. Milan, the attorney who has already received payment
from the Commissioner.

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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. Gisbrecht, 535 U.S. at 800. Ultimately,

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an award of section 406(b) fees is offset by an award of attorney fees granted under the EAJA.

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28 U.S.C. § 2412. Gisbrecht, 535 U.S. at 796.

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The Ninth Circuit has identified several factors that a district court can examine under

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Gisbrecht in determining whether the fee was reasonable. In determining whether counsel met

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his burden to demonstrate that the requested fees are reasonable, the court may consider (1) the

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standard of performance of the attorney in representing the claimant; (2) whether the attorney

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exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of

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past-due benefits; and (3) whether the requested fees are excessively large in relation to the

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benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586

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F.3d at 1151.

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III.

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DISCUSSION

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The Court has conducted an independent check to insure the reasonableness of the

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requested fees in relation to this action. Gisbrecht, 122 S.Ct. at 1828. Here, the fee agreement

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between Plaintiff and Petitioner provides for a fee consisting of “25 (twenty-five) percent of the

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past-due benefits resulting from my claim or claims.” (Social Security Employment Agreement,

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attached to Motion, ECF No. 28-2 at 2.) Plaintiff has been awarded benefits from June 2009

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through February 2015 in the amount of $121,400.00. (ECF No. 28-1 at 2.) In determining the

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reasonableness of the fees requested, the Court is to apply the test mandated by Gisbrecht.

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There is no indication that a reduction of fees is warranted for substandard performance.

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Counsel is an experienced, competent attorney who secured a successful result for Plaintiff.

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Although this action does involve more than seven years of backpay, there is no indication that

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Counsel was responsible for any substantial delay in the court proceedings. Plaintiff agreed to a

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25 percent fee at the outset of the representation and Petitioner is seeking $24,350.00 which

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added to the $6,000.00 already paid to Mr. Milan is 25 percent of the backpay award.2 The total

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fee award of $30,350.00, of which Petitioner is seeking $24,350.00, is not excessively large in

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relation to the past-due award of $121,400.00.

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recognizes the contingent nature of this case and Counsel’s assumption of the risk of going

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uncompensated. Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003).

In making this determination, the Court

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When considering the total amount requested by Petitioner, the fee request translates to

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$614.90 per hour for Petitioner’s time. In Crawford the appellate court found that a fee of $875

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and $902 per hour, for time of both attorneys and paralegals, was not excessive. Crawford, 486

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F.3d at 1152 (dissenting opinion).

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The Court finds that the requested fees are reasonable when compared to the amount of

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work Counsel performed in representing Plaintiff in court. Petitioner’s representation of the

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claimant resulted in the action being remanded for further proceedings and substantial benefits

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were awarded. Counsel also submitted a detailed billing statement which supports her request.

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(ECF Nos. 28-3.)

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Finally, to the extent that the withheld fees are insufficient to cover all fees awarded at the

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administrative and court level, the claimant’s counsel must recover the difference from the

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claimant. Dobson v. Commissioner, No. 2:09-cv-01460-KJN, 2013 WL 6198185, at *4 (E.D.

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Cal. Nov. 27, 2013).

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VI.

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CONCLUSION AND ORDER

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For the reasons stated above, the Court finds that the fees sought by Petitioner pursuant to
Section 406(b) are reasonable. Accordingly, IT IS HEREBY ORDERED that:

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Petitioner’s motion for an award of attorney fees pursuant to Section 406(b) in the
amount of $24,350.00 is GRANTED; and

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2.

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If the amount of past-due benefits withheld is insufficient to cover all fees awarded
at the administrative and court levels, Petitioner must recover the difference from

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The attorney fees total $30,350.00.
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the claimant.

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IT IS SO ORDERED.
Dated:

August 21, 2015
UNITED STATES MAGISTRATE JUDGE

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