Lopez v. Commissioner of Social Security

Filing 30

ORDER signed by Magistrate Judge Jeremy D. Peterson on 11/07/23 GRANTING 27 Motion for Attorney Fees, AWARDING Plaintiff's counsel $27,092.50 in fees and DIRECTING Plaintiff's Counsel to REIMBURSE plaintiff $7,000 for previously paid EAJA fees. (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BLANCA ESTELA LOPEZ,

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Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,

Case No. 1:17-cv-01576-JDP (SS)
ORDER GRANTING PLAINTIFF’S MOTION
FOR ATTORNEY FEES UNDER 42 U.S.C.
§ 406(b)
ECF No. 27

Defendant.

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Plaintiff’s counsel moves for an award of attorney fees under 42 U.S.C. § 406(b). ECF

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No. 27. Plaintiff entered into a contingent fee agreement that provided she would pay counsel

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twenty-five percent of any award of past-due benefits. ECF No. 27-5 at 2-3. After this court

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remanded this action for further proceedings, plaintiff was found disabled and awarded $108,370

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in past-due benefits. ECF No. 23; ECF No. 27-5 at 7-12. Counsel now seeks attorney’s fees in

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the amount of $27, 092.50, which is equal to twenty-five percent of total past-due benefits that

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plaintiff was awarded, with a credit to plaintiff for the fees previously awarded under the Equal

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Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), in the amount of $7,000.00. ECF No. 27;

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see also ECF No. 26.

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An attorney is entitled to reasonable fees for successfully representing social security
claimants in district court.

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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.

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42 U.S.C. § 406(b)(1)(A). Rather than being paid by the government, fees under section

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406(b) are paid by the claimant from the awarded past-due benefits. Crawford v. Astrue, 586

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F.3d 1142, 1147 (9th Cir. 2009) (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802

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(2002)). The twenty-five percent statutory maximum fee is not an automatic entitlement; the

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court must ensure that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808-09 (“We hold

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that § 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, §

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406(b) instructs courts to review for reasonableness fees yielded by those agreements.”). In

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assessing whether a fee is reasonable, the court should consider “the character of the

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representation and the results the representative achieved.” Id. at 808. A “court may properly

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reduce the fee for substandard performance, delay, or benefits that are not in proportion to the

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time spent on the case.” Crawford, 586 F.3d at 1151.

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The court finds that the requested fees are reasonable. Counsel’s billing records reflect a

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total of 36.10 hours of attorney time on this case. ECF No. 27-5 at 5. Counsel’s request for

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$27,092.50, which is the equivalent of the statutory maximum, would constitute an hourly rate of

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approximately $750 for attorney services. Counsel did not engage in dilatory conduct or perform

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in a substandard manner. Indeed, counsel’s representation resulted in this matter being remanded

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for further proceedings, which resulted in a favorable decision and an award of benefits. ECF

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Nos. 23, 24; ECF No. 27-5 at 7-12. Given counsel’s experience, the result obtained in this case,

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and the risk of loss in representing plaintiff, the court finds the hourly rate reasonable. See, e.g.,

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De Vivo v. Berryhill, No. 1:15-cv-1332-EPG, 2018 WL 4262007 (E.D. Cal. Sept. 6, 2018)

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(awarding fees at effective hourly range of $1,116.26); Jamieson v. Astrue, No. 1:09-cv-0490

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LJO DLB, 2011 WL 587096 (E.D. Cal. Feb. 9, 2011) (finding fee at effective hourly rate of

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$1,169.49 reasonable); Naddour v. Colvin, No. 13-CV-1407-BAS (WVG), 2016 WL 4248557

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(S.D. Cal. Aug. 11, 2016) (awarding fee at effective hourly rate of $1,063); Palos v. Colvin, No.
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CV 15-04261-DTB, 2016 WL 5110243 (C.D. Cal. Sept. 20, 2016) ) (finding fee at effective

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hourly rate of $1,546.39 reasonable).

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s counsel’s motion for attorney’s fees, ECF No. 27, is granted.

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2. Plaintiff’s counsel is awarded $27,092.50 in fees pursuant to 42 U.S.C. § 406(b).

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3. Plaintiff’s counsel is directed to reimburse plaintiff the sum of $7,000.00 for

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previously paid EAJA fees pursuant to 28 U.S.C. § 2412(d).

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IT IS SO ORDERED.

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Dated:
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November 7, 2023
JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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