Parker v. Commissioner of Social Security

Filing 31

ORDER GRANTING MOTION FOR ATTORNEYS' FEES PURSUANT TO 42 U.S.C. § 1383(d)(2)(B) (Doc. No. 28 ) signed by Magistrate Judge Barbara A. McAuliffe on 04/22/2019. The Court ORDERS Plaintiff's counsel's motion for attorneys' ; fees under 42 U.S.C. §1383(d)(2)(B) (Doc. No. 28) is GRANTED. Plaintiff's counsel is awarded $9,970.00 in attorneys' fees pursuant to 42 U.S.C. § 406(b). Plaintiff's counsel shall compensate Plaintiff in the amount of $8,800.00 for fees previously awarded pursuant to the EAJA. (Gonzales, V)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KATINA ANN PARKER
Plaintiff,

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v.

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NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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Case No.: 1:14-cv-0763-BAM
ORDER GRANTING MOTION FOR
ATTORNEYS’ FEES PURSUANT TO 42 U.S.C.
§ 1383(d)(2)(B)
(Doc. No. 28)

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Pending before the Court is Plaintiff’s counsel’s motion for attorneys’ fees pursuant to 42

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U.S.C. §1383(d)(2)(B). (Doc. No. 28). The Commissioner of Social Security (the “Commissioner”)

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has filed a statement of non-opposition to the motion. (Doc. No. 30). Having reviewed the motion and

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its supporting documentation, as well as the case file, the Court GRANTS the motion and awards

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attorneys’ fees in the amount of $9,970.00.

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I.

Relevant Background

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The Law Offices of Lawrence D. Rohlfing entered into a written contingent fee agreement with

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Plaintiff on May 6, 2014, which provided that “in consideration of the services to be performed by the

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Attorney and it being the desire of the Claimant to compensate Attorney out of the proceeds shall

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receive 25% of the awarded by the Social Security Administration to the claimant… upon successful

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completion of the case” (Doc. No. 28-1).

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On May 20, 2014, Plaintiff filed this action seeking judicial review of the Commissioner’s

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denial of benefits. (Doc. No. 1). On August 6, 2015, the Court issued an order upholding the

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Commissioner’s decision to deny benefits. (Doc. No. 17.) Plaintiff filed a notice of appeal and, on

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September 19, 2017, the Ninth Circuit Court of Appeals reversed the Court’s order dated August 6,

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2015. (Doc. No. 20.) On November 7, 2017, the Court issued an order remanding this action for

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further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. No. 22.)

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The Commissioner issued a decision to grant Plaintiff’s application for benefits and, on October 2,

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2018, the Commissioner issued a notice indicating that Plaintiff’s retroactive benefits totaled

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$39,887.68. (Doc. No. 28 at 3.) On January 31, 2018, the Court approved the parties’ stipulation to

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award Plaintiff $8,800.00 in attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. §

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2412(d). (Doc. No. 27.)

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In the present Motion, Plaintiff’s counsel asks the Court to direct the Commissioner to certify

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the fee of $9,970.00 for legal fees incurred in this Court. Plaintiff’s counsel contends this fee is

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reasonable in light of the services rendered and results achieved, particularly as this matter took more

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than seven years to resolve and required representation before the Court of Appeals. (Doc. No. 28 at

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5). The Commissioner filed a notice of non-opposition noting that the $9,970.00 requested is less than

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25 percent of the past-due benefits awarded and further requesting that any fee award include an

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instruction to counsel to compensate Plaintiff in the amount of EAJA fees already received. (Doc. No.

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30.)

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II.

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

awarded benefits:
Whenever a court renders a judgment favorable to a claimant . . . 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. . ..
42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b)
controls fees awarded for representation of Social Security claimants); 42 U.S.C. § 1383(d)(2)(A)
(incorporating the provisions of section 406). A contingency fee agreement is unenforceable if it
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provides for fees exceeding twenty-five percent of past-due benefits. Gisbrecht, supra, 535 U.S. at

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807.

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III.

Discussion and Analysis

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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, after carefully considering the fee agreement and the applicable law, the Court

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finds Plaintiff’s counsel’s requested fees to be reasonable. In support of his motion for attorneys’ fees

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under 42 U.S.C. § 406(b), Plaintiff’s counsel attached the contingent fee agreement which provided

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for a contingent fee of twenty-five percent of any awarded retroactive benefits. Plaintiff’s counsel

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accepted the risk of loss in the representation and expended a total of 61.35 hours while representing

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Plaintiff before the District Court and the Ninth Circuit Court of Appeals. (Doc. No. 28 at 8.) As a

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result of counsel’s work, the matter was remanded for further proceedings before an Administrative

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Law Judge, who issued a fully favorable decision and awarded Plaintiff benefits.

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Plaintiff’s counsel provided a copy of the notice of award and the motion for attorney’s fees to

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Plaintiff. (Doc. No. 28). Although served with the motion, Plaintiff did not challenge the requested

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fees which attests to their reasonableness. Likewise, the Commissioner, in its advisory capacity, also

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declined to dispute the propriety of the amount of the fees requested by Plaintiff’s counsel. (Doc. No.

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30.)

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Additionally, there is no indication counsel performed in a substandard manner or engaged in

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

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was able to secure a fully favorable decision and remand for further proceedings, including an award
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of past-due benefits. Accordingly, the Court finds the fees sought by counsel are reasonable in light

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the results achieved in this action, and the amount does not exceed twenty-five percent maximum

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permitted under 42 U.S.C. §§ 1383(b)(2)(D) and 406(b).

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IV.

Conclusion and Order

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Based upon the foregoing, the Court ORDERS:

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1.

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Plaintiff’s counsel’s motion for attorneys’ fees under 42 U.S.C. §1383(d)(2)(B) (Doc.

No. 28) is GRANTED;
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Plaintiff’s counsel is awarded $9,970.00 in attorneys’ fees pursuant to 42 U.S.C. §

406(b); and
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Plaintiff’s counsel shall compensate Plaintiff in the amount of $8,800.00 for fees

previously awarded pursuant to the EAJA.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

April 22, 2019

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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