Clemons v. Commissioner of Social Security

Filing 28

ORDER VACATING the Hearing Date of September 27, 20189; ORDER GRANTING 26 Motion for Attorney Fees Pursuant to 42 U.S.C. §406(b), signed by Magistrate Judge Jennifer L. Thurston on 9/20/2018. (Hall, S)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARIANNE H. CLEMONS, Plaintiff, 12 v. 13 14 NANCY A. BERRYHILL1, Acting Commissioner of Social Security, 15 Defendant. ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-0981- JLT ORDER VACATING THE HEARING DATE OF SEPTEMBER 27, 2018 ORDER GRANTING COUNSEL’S MOTION FOR ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(b) (Doc. 26) 16 Harvey Sackett, counsel for Plaintiff Marianne Clemons, seeks an award of attorney fees 17 18 pursuant to 42 U.S.C. § 406(b). (Doc. 26) Neither Plaintiff nor the Commissioner of Social Security 19 oppose the motion. The Court has reviewed the motion and supporting documents, and finds the matter suitable for 20 21 decision without oral arguments. Accordingly, the matter is taken under submission pursuant to Local 22 Rule 230(g) and the hearing date of September 27, 2018 is VACATED. For the reasons set forth 23 below, the motion for attorney fees is GRANTED. 24 I. Relevant Background Plaintiff retained Harvey Sackett as counsel and executed the Social Security Administration’s 25 26 “Appointment of Representative” form on July 11, 2013. (Doc. 26-3) Mr. Sackett executed the 27 “Acceptance of Appointment” on July 15, 2013, and indicated that he would be “[c]harging a fee and 28 1 Nancy A. Berryhill is now Acting Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, the Court substitutes Nancy A. Berryhill for her predecessor, Carolyn W. Colvin, as the defendant in this action. 1 1 requesting direct payment of the fee from withheld past-due benefits.” (Id.) On December 5, 2014, an administrative law judge issued an unfavorable decision denying 2 3 Plaintiff’s application for benefits under Title II of the Social Security Act. (Doc. 12-3 at 12-18) The 4 Appeals Council denied Plaintiff’s request for review on May 5, 2016 (id at 2-4), at which time the 5 decision of the ALJ became the final decision of the Commissioner of Social Security. 6 In July 2016, Plaintiff filed a complaint for judicial review of the administrative decision 7 denying her Social Security benefits. (Doc. 1) On March 23, 2017, the parties stipulated that the matter 8 should be remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 18) 9 In addition, the parties stipulated that an ALJ would “issue a new decision,” and that judgment should 10 be entered in favor of Plaintiff. (Id. at 2) Pursuant to the terms of the stipulation, the Court entered 11 judgment in favor of Plaintiff and remanded the action for further proceedings on March 24, 2017. 12 (Doc. 19; Doc. 20) On April 27, 2018, Plaintiff received a fully favorable decision from an administrative law 13 14 judge. (See Doc. 26-1 at 1) The Commissioner determined Plaintiff was “entitled to monthly disability 15 benefits from Social Security beginning August 2012,” which totaled $102,960.00. (Doc. 26-2 at 3; 16 Doc. 26 at 2) From this amount, the Commissioner withheld twenty-five percent for payment of 17 Plaintiff’s attorney fees, a total of $23,639.00. (Doc. 26-2 at 6) 18 Mr. Sackett now seeks “a gross fee of $13,639.00 and a net fee of $11,108.10 after 19 reimbursement of EAJA fees for professional services provided before this court” pursuant to 42 20 U.S.C. § 406(b). (Doc. 26 at 2) 21 II. 22 23 Attorney Fees under Section 406(b) An attorney may seek an award of fees for representation of a Social Security claimant who is awarded benefits: 26 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. . . . 27 42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) 28 controls fees awarded for representation of Social Security claimants). A fee agreement is 24 25 2 1 unenforceable if it provides that counsel will receive fees exceeding twenty-five percent of past-due 2 benefits. Id. at 807. 3 III. 4 Discussion and Analysis District courts “have been deferential to the terms” of fee contracts in Social Security cases 5 where fees are sought under Section 406(b) cases. Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. 6 Cal. 2003). However, the Court must review contingent-fee arrangements “as an independent check, to 7 assure that they yield reasonable results in particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, 8 the Court should consider “the character of the representation and the results the representative 9 achieved.” Id. at 808. In addition, the Court should consider whether the attorney performed in a 10 substandard manner or engaged in dilatory conduct or excessive delays, and whether the fees are 11 “excessively large in relation to the benefits received.” Crawford v. Astrue, 586 F.3d 1142, 1149 (9th 12 Cir. 2009) (en banc). 13 In this case, Plaintiff entered into the contingent fee agreement in which she agreed to pay up 14 to twenty-five percent of any awarded retroactive benefits. Specifically, Plaintiff reports: “Under the 15 terms executed by Plaintiff and … counsel, having represented her at both the administrative and 16 judicial levels of adjudication, Sackett is to be paid a total maximum of 25% of the past-due benefits 17 being withheld for attorney’s fees for work performed under § 406(a) and (b).” (Doc. 26 at 2) Mr. 18 Sackett accepted the risk of loss in the representation and expended a total of 16.15 hours while 19 representing Plaintiff before the District Court. (Doc. 26 at 9; Doc. 26-5 at 1) After Mr. Sackett 20 prepared Plaintiff’s confidential letter brief, the Commissioner agreed the matter should be remanded 21 for further proceedings before an administrative law judge. Ultimately, his work resulted in a fully 22 favorable decision that awarded Plaintiff benefits for disability. For this, Mr. Sackett requests a fee of 23 $13,639.00. (Doc. 26 at 12) Because $2,530.90 was paid under the EAJA, the net cost to Plaintiff is 24 $11,108.10. (Id.) Finally, although served with the motion (Doc. 26-7), Plaintiff did not file an 25 opposition, which implies she beleives the fee request is reasonable. 26 There is no indication Mr. Sackett performed in a substandard manner or engaged in severe 27 dilatory conduct to the extent that a reduction in fees is warranted. To the contrary, he secured for the 28 plaintiff a fully favorable decision following the remand for further proceedings, including an award 3 1 of past-due benefits. Accordingly, the Court finds the fees sought by Mr. Sackett are reasonable in 2 light the results achieved in this action, and the amount does not exceed twenty-five percent maximum 3 permitted under 42 U.S.C. §406(b). 4 IV. Conclusion and Order 5 Based upon the foregoing, the Court ORDERS: 6 1. The hearing set for September 27, 2018 is VACATED; 7 2. The motion for attorney fees pursuant to 24 U.S.C. §406(b) in the amount of $13,639.00 is GRANTED; 8 9 3. The Commissioner shall pay the amount directly to Counsel, Harvey Sackett; and 10 4. Counsel SHALL refund $2,530.90 to Plaintiff Marianne Clemons. 11 12 13 14 IT IS SO ORDERED. Dated: September 20, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?