Bishop v. Commissioner of Social Security

Filing 32

Order GRANTING 29 Motion for Attorney Fees pursuant to 42 U.S.C. § 406(b), signed by Magistrate Judge Erica P. Grosjean on 6/28/2018. (Rosales, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RANDALL WAYNE BISHOP, as the Heir and
Case No. 1:16-cv-00741-EPG
Representative of the Estate of DEBORAH
ANN BISHOP,
ORDER GRANTING MOTION FOR
ATTORNEY FEES PURSUANT TO 42
Plaintiff,
U.S.C. § 406(b)
v.

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(ECF No. 29)
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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I. INTRODUCTION
Young Chul Cho of the Law Offices of Lawrence D. Rohlfing, attorney for Randall

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Wayne Bishop, as the heir and representative of the estate of Deborah Ann Bishop (“Plaintiff”),

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filed a Motion for Attorney’s Fees Pursuant to 42 U.S.C. § 406(b) on April 10, 2018. (ECF No.

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29). Plaintiff and the Commissioner of Social Security (“Defendant” or “Commissioner”) were

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served with the motion. (ECF No. 29 at 11). Plaintiff has not filed any opposition to the motion.

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Defendant filed a response to the motion on May 11, 2018, and indicated that it has no

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opposition to the motion. (ECF No. 31). For the reasons set forth below, the motion for

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attorney’s fees is granted.

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II. BACKGROUND

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On March 27, 2016, Deborah Ann Bishop commenced this action for judicial review of
a final denial of an application for disability benefits under the Social Security Act by the
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Commissioner of the Social Security Administration. (ECF No. 1.) On July 27, 2017, Randall

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Wayne Bishop, as the heir and representative of the estate of Deborah Ann Bishop, was

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substituted in place and stead of Deborah Ann Bishop, deceased. (ECF No. 23).

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On October 11, 2017, the Court entered judgment in favor of Plaintiff, and remanded

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the matter for an award of benefits. (ECF No. 25). On December 26, 2017, counsel was

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awarded attorney’s fees in the amount of $6,500.00 under the Equal Access to Justice Act

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(“EAJA”), 28 U.S.C. §2412(d). (ECF No. 28). On March 27, 2018, Plaintiff was awarded past-

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due benefits in the amount of $57,813.00 (ECF No. 29 at 4).

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Plaintiff’s counsel now moves for attorney’s fees in the amount of $14,453.00 pursuant

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to 42 U.S.C. § 406(b). Id. at 3. Counsel states that Deborah Ann Bishop entered into a

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contingency fee agreement whereby the Law Offices of Lawrence D. Rohlfing would receive a

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fee of 25% of the past due benefits awarded upon reversal by the Court of the Commissioner’s

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decision. Id. Counsel contends that the fees are reasonable as he has expended 37.4 hours of

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work on this matter. Id. Counsel further contends that he did not receive any EAJA fees in this

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case because they were diverted towards payment of a debt by the U.S. Treasury Offset

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Program. Id. at 7.

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

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which they have successfully represented social security claimants. Section 406(b) provides

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the following 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.
42 U.S.C. § 406(b)(1)(A) (emphasis added). “In contrast to fees awarded under fee-shifting
provisions such as 42 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits
awarded; the losing party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142,
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1147 (9th Cir.2009) (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. at 789, 802 (2002)).

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However, the Commissioner has standing to challenge the award, despite the fact that the

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Section 406(b) attorney's fee award is not paid by the government. Craig v. Sec ‘y Dep't of

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Health & Human Servs., 864 F.2d 324, 328 (4th Cir.1989), abrogated on other grounds in

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Gisbrecht, 535 U.S. at 807. The goal of fee awards under Section 406(b) is to provide adequate

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incentive to represent claimants while ensuring that the usually meager disability benefits

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received are not greatly depleted. Cotter v. Bowen, 879 F.2d 359, 365 (8th Cir.1989),

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abrogated on other grounds in Gisbrecht, 535 U.S. at 807.

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

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are required to ensure that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808–09

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

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instead, Section 406(b) instructs courts to review for reasonableness fees yielded by those

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agreements). “Within the 25 percent boundary . . . the attorney for the successful claimant must

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show that the fee sought is reasonable for the services rendered.” Id. at 807; see also Crawford,

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586 F.3d at 1148 (holding that Section 406(b) “does not specify how courts should determine

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whether a requested fee is reasonable” but “provides only that the fee must not exceed 25% of

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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

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1148 (quoting Gisbrecht, 535 U.S. at 793, 808). The United States Supreme Court has

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identified several factors that may be considered in determining whether a fee award under a

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contingent-fee agreement is unreasonable and therefore subject to reduction by the court: (1)

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the character of the representation; (2) the results achieved by the representative; (3) whether

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the attorney engaged in dilatory conduct in order to increase the accrued amount of past-due

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benefits; (4) whether the benefits are large in comparison to the amount of time counsel spent

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on the case; and (5) the attorney’s record of hours worked and counsel’s regular hourly billing

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charge for non-contingent cases. Id. (citing Gisbrecht, 535 U.S. at 807–08).
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Here, Deborah Ann Bishop entered into a fee agreement that provides for attorney’s

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fees in the amount of 25% of the past-due benefits. (ECF No. 29-1). The Court has considered

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counsel’s representation of Plaintiff and the results achieved by counsel. Plaintiff’s counsel

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indicates he expended a total of 37.4 hours litigating Plaintiff's case and he is seeking 25% of

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the total amount of past-due benefits. (ECF No. 29 at 3; 29-3 at 1-2). This represents an hourly

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rate of $386.45, which is within the prevailing market rate. (ECF No. 29-5 at 14.) Further,

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

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performance by counsel in this matter. Counsel is an experienced attorney who secured a

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successful result for Plaintiff. There is also no evidence that counsel engaged in any dilatory

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conduct resulting in excessive delay. Thus, the requested fee amount is not excessive in

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relation to the past-due award. See generally, Shepard v. The Comm’n of Social Security, No.

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1:14-cv-1166 SMS, 2016 WL 3549261 (E.D. Cal. June 29, 2016) (granting $17,125.00

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pursuant to Section 406(b)); Schneider v. The Comm’n of Soc. Sec., No. 14-cv-00034 SKO,

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2016 WL 2654228 (E.D. Cal., May 10, 2016) (granting $10,253.96); Whiteside v. The Comm’n

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of Soc. Sec., No. 1:13-cv-1337-BAM, 2015 WL 36545054 (E.D. Cal., June 11, 2015) (granting

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$6,000.00). In making this determination, the Court recognizes the contingent-fee nature of

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this case and counsel’s assumption of risk in agreeing to represent Plaintiff under such terms.

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See Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal.2003) (“Because attorneys []

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

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successful cases does not provide a basis for this court to lower the fee to avoid a windfall.”).

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

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attorney’s fees granted under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. Here,

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the Court previously determined that Plaintiff’s counsel is entitled to EAJA fees in the amount

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of $6,500.00, but counsel did not receive any payment due to Plaintiff’s federal debt.

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Therefore, no reimbursement of EAJA fees to the Plaintiff is necessary.

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IV. CONCLUSION AND ORDER
For the reasons stated above, the fees sought by Young Chul Cho pursuant to Section
406(b) are reasonable. Accordingly, IT IS HEREBY ORDERED that:
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1. The Motion for Attorney’s Fees pursuant to Section 406(b) in the amount of

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$14,453.00, (ECF No. 29), is GRANTED;
2. The Clerk of the Court is directed to serve this order on Randall Bishop at 2104

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LaSalle Avenue, Apt 205 F, Lubbock, TX 79407.

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IT IS SO ORDERED.
Dated:

June 28, 2018

/s/
UNITED STATES MAGISTRATE JUDGE

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