Slade v. Commissioner of Social Security

Filing 36

FINDINGS and RECOMMENDATIONS recommending Granting 34 Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b), signed by Magistrate Judge Jennifer L. Thurston on 4/29/2015. Referred to Judge O'Neill. Objections to F&R due within 14 days. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SHERRY SLADE,

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Plaintiff,

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v.
CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

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Case No.: 1:12-cv-01253- JLT
FINDINGS AND RECOMMENDATIONS
GRANTING MOTION FOR ATTORNEY FEES
PURSUANT TO 42 U.S.C. § 406(b)
(Doc. 34)

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Sengthiene Bosavanh, attorney for Plaintiff Sherry Slade, seeks an award of attorney fees

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pursuant to 42 U.S.C. § 406(b). (Doc. 34.) Plaintiff did not oppose the motion. Defendant filed a

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provided an analysis of the request for the Court, noting “the Commissioner has a role ‘resembling that

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of a trustee’ for Plaintiff. (Doc. 35 at 2, quoting Gisbrecht v. Barnhart, 535 U.S. 789, 798, n.6 (2002).

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For the following reasons, the Court recommends the motion for attorney fees be GRANTED.

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I.

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Factual and Procedural History
Plaintiff and Ms. Bosavanh entered into a contingent fee agreement on July 20, 2012, which

provided Plaintiff would pay twenty-five percent of any awarded past due benefits. (Doc. 34-3.)
On July 31, 2012, Plaintiff filed a complaint for review of the administrative decision denying

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her Social Security benefits. (Doc. 1). The Court determined the administrative law judge “erred in

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the evaluation of the medical evidence and in giving less weight to the opinion of Plaintiff’s treating
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physician.” (Doc. 25 at 13.) Therefore, the Court remanded the matter for further administrative

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proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 27.) Following the entry of

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judgment in favor of Plaintiff (Doc. 28), the Court awarded $7,243.95 in attorney fees pursuant to the

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Equal Access to Justice Act. (Doc. 33.)
On July 31, 2014, an administrative law judge issued a fully favorable decision, concluding

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Plaintiff was “disabled from September 1, 2004, through the date of the decision.” (Doc. 34-4 at 5.)

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On December 18, 2014, the Commissioner issued a notice to Plaintiff, indicating the retroactive

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benefits amounted to $100,934.00. (Doc. 34-2 at 3.)

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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
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twenty-five percent of any awarded retroactive benefits. Ms. Bosavanh accepted the risk of loss in the

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representation and “expended a total of 58.3 hours in representation of Sherry Slade in this matter

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through the entry of the order of remand. (Doc. 34 at 8, Bosavanh Decl. ¶ 5.) Previously, this Court

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determined the total time expended by Ms. Bosavanh was not reasonable given the routine and

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duplicative nature of many tasks, and awarded fees for 38.8 hours of work. (Doc. 32 at 12; Doc. 33.)
As a result of Ms. Bosavanh’s work to remand the action to an administrative law judge,

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Plaintiff ultimately received an award of benefits for disability. For this, Ms. Bosavanh requests a fee

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of $25,233.50. (Doc. 21 at 5.) Because $7,243.95 was paid under the EAJA, the net cost to Plaintiff is

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$17,989.55. (Doc. 35 at 4.) This amount does not exceed twenty-five percent of the retroactive

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benefits. Although served with the motion and informed a response may be filed (Doc. 34-1), Plaintiff

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did not file an opposition, and thereby indicates her belief that the fee request is reasonable.

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IV.

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Findings and Recommendations
The fees sought by Ms. Bosavanh are reasonable in light of the number of hours expended in

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this action, and not in excess of the twenty-five percent maximum permitted under 42 U.S.C. §406(b).

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In addition, there is no indication Counsel performed in a substandard manner or engaged in severe

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dilatory conduct in the course of her representation to the extent that a reduction in fees is warranted.

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To the contrary, Plaintiff was able to secure an award of benefits following the Court’s remand.

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Based upon the foregoing, IT IS HEREBY RECOMMENDED:

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1.

The motion for attorney fees pursuant to 24 U.S.C. §406(b) in the amount of
$25,233.50 be GRANTED;

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2.

The Commissioner be DIRECTED to pay the amount directly to Ms. Bosavanh; and

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3.

Counsel be DIRECTED to refund $7,243.95 to Plaintiff Sherry Slade.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local

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Rules of Practice for the United States District Court, Eastern District of California. Within 14 days

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after being served with these findings and recommendations, Plaintiff may file written objections with

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the Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.”
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Plaintiff is advised failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); Wilkerson v.

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Wheeler, 772 F.3d 834, 834 (9th Cir. 2014).

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IT IS SO ORDERED.
Dated:

April 29, 2015

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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