Kiser v. Commissioner of Social Security

Filing 45

ORDER GRANTING 41 Motion for Attorney's Fees; ORDER for Clerk to Mail a Copy of Order to Plaintiff, signed by Magistrate Judge Helena M. Barch-Kuchta on 9/18/2023. (Rivera, O)

Case 1:18-cv-00518-HBK Document 45 Filed 09/18/23 Page 1 of 4
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANIEL W. KISER,

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Plaintiff,

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Case No. 1:18-cv-00518-HBK
ORDER GRANTING MOTION FOR
ATTORNEY'S FEES1

v.
(Doc. No. 41)

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KILOLO KIJAKAZI, ACTING
COMMISSIONER OF SOCIAL
SECURITY,

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ORDER FOR CLERK TO MAIL A COPY OF
ORDER TO PLAINTIFF

Defendant.

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Shellie Lott (“Counsel”) of Cerney Kreuze & Lott, LLP, attorney for Daniel W. Kiser

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(“Plaintiff”), filed a motion seeking attorney’s fees pursuant to 42 U.S.C. § 406(b) on August 15,

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2023. (Doc. No. 41). Plaintiff was served with the motion and advised he had 30 days to object.

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(Id. at 41-6). No opposition has been filed as of the date of this Order. (See docket). For the

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reasons set forth below, the motion for attorney’s fees is granted in the amount of $18,760.50

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subject to an offset of $10,000.00 in fees previously awarded on December 31, 2019, under the

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Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). (Doc. No. 40).
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Both parties have consented to the jurisdiction of a magistrate judge in accordance with 28 U.S.C.
§636(c)(1). (Doc. No. 44).

Case 1:18-cv-00518-HBK Document 45 Filed 09/18/23 Page 2 of 4
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I. BACKGROUND

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On April 16, 2018, Plaintiff brought the underlying action seeking judicial review of a

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final administrative decision denying Plaintiff’s claim for disability insurance benefits under the

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Social Security Act. (Doc. No. 1). On September 27, 2019, the Court granted Plaintiff’s motion

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for summary judgment and remanded pursuant to sentence four of 42 U.S.C. § 405(g). (Doc.

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Nos. 37, 38). The Court entered an award of $10,000.00 for attorney fees under the Equal Access

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to Justice Act (“EAJA”) on December 31, 2019. (Doc. Nos. 39, 40).

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On remand, the Commissioner found Plaintiff disabled beginning in January 2013. (Doc.

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No. 41-2). Plaintiff was awarded $75,042.00 in retroactive benefits.2 (Doc. No. 41-2 at 5). On

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March 17, 2022, Counsel filed this motion for attorney’s fees in the amount of $18,760.50, with

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an offset of $10,000.00 for EAJA fees already awarded. (Doc. No. 41). Counsel argues these

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fees are reasonable because the contingency fee agreement, which Plaintiff signed, permits

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Counsel to retain 25% of the past-due benefits, and the requested amount is reasonable. (Doc.

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No. 41 at 2-3; Doc. No. 41-3). Plaintiff filed no opposition and Defendant filed a response that

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“neither supports nor opposes counsel’s request for attorney’s fees.” (Doc. No. 43 at 2).

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II. APPLICABLE LAW

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Attorneys may seek a reasonable fee under the Social Security Act for cases in which they
have successfully represented social security claimants. Section 406(b) allows:

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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 . .
..

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42 U.S.C. § 406(b)(1)(A). Counsel for a plaintiff may recover attorneys’ fees under both 42

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U.S.C. § 406(b) and EAJA. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). Counsel, however,

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must refund to the plaintiff the amount of the smaller fee. Id.

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Plaintiff did not provide a citation to this amount in the notice of award; thus, the Court presumes the
number was calculated by multiplying the 25% of past due benefits amount by four ($18,760.50 x 4). (See
Doc. No. 41-2 at 5).

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Case 1:18-cv-00518-HBK Document 45 Filed 09/18/23 Page 3 of 4
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Fees in social security cases “are usually set in contingency-fee agreements and are

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payable from past-due benefits awarded to the claimant.” Biggerstaff v. Saul, 840 F. App'x 69, 70

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(9th Cir. 2020). The fee is not borne by the Commissioner. Crawford v. Astrue, 586 F.3d 1142,

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1147 (9th Cir. 2009). This provision’s purpose is in part to “ensure that attorneys representing

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successful claimants would not risk nonpayment of [appropriate] fees.” Gisbrecht, 535 U.S. at

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805 (internal quotations omitted). When weighing the adequacy of requested attorney’s fees,

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Courts should respect “the primacy of lawful attorney-client fee agreements.” Id. at 793.

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Counsel still bears the burden, however, of showing the requested fees are reasonable. Id. at 807.

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In determining reasonableness, the court may consider the experience of the attorney, the results

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they achieved, and whether there is evidence the attorney artificially increased the hours worked

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or the hourly rate charged. Id. at 807-808; Crawford, 586 F.3d at 1151. Any 406(b) award is

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offset by attorney fees granted under the EAJA. Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d

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1215, 1219 (9th Cir. 2012)

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III. ANALYSIS
Here, Plaintiff signed a fee agreement providing, “if Claimant is subsequently awarded

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benefits by the [SSA], Claimant agrees to pay Attorney a fee for Federal Court work equal to

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25% of the past-due benefits.” (Doc. No. 41-3). Counsel was ultimately successful in securing

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$75,042.00 in retroactive benefits for Plaintiff. (Doc. No. 41-2). In support of this motion,

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Counsel submitted a time sheet indicating the firm expended 56.5 hours in attorney time on this

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matter. (Doc. No. 41-4). The time Counsel spent in successfully attaining Plaintiff’s benefits

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does not appear inflated.

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Counsel’s request for $18,760.50 in fees for 56.5 hours of work results in an hourly rate of

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$332.04 for the attorney work. (See Doc. No. 41-4). In 2008, the Ninth Circuit found higher

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hourly rates reasonable in social security contingency fee arrangements. Crawford, 586 F.3d at

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1153 (explaining that the majority opinion found reasonable effective hourly rates equaling

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$519.00, $875.00, and $902.00) (J. Clifton, concurring in part and dissenting in part). More

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recently, this Court approved an hourly rate of $1,025.22 for paralegal and attorney time.

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Mayfield v. Comm’r of Soc. Sec., No. 1:16-cv-01084-SAB, ECF No. 24, at 5 (E.D. Cal. March 19,
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Case 1:18-cv-00518-HBK Document 45 Filed 09/18/23 Page 4 of 4
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2020). Attorney hourly rates inevitably rise as their experience increases, and Counsel has been

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practicing social security law since 2009. (Doc. No. 41-4 at 1). Based on the foregoing, the

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Court finds the requested fees of $18,760.50 are reasonable. Gisbrecht, 535 U.S. at 807-08.

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An award of attorney’s fees pursuant to 406(b) in the amount of $18,760.50 is, therefore,

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appropriate. An award of § 406(b) fees, however, must be offset by any prior award of attorneys’

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fees granted under the EAJA. 28 U.S.C. § 2412(d); Gisbrecht, 535 U.S. 796. As Plaintiff was

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previously awarded $10,000 in fees pursuant to the EAJA, Counsel shall refund this amount to

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Plaintiff.

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Accordingly, it is ORDERED:
1. Plaintiff’s Counsel’s motion for an award of attorney’s fees is GRANTED (Doc. No.

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41).
2. Plaintiff’s Counsel is awarded $18,760.50 in attorney fees pursuant to 42 U.S.C. §

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406(b).

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3. Counsel shall refund to Plaintiff $10,000 of the § 406(b) fees awarded as an offset for

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the EAJA fees previously awarded pursuant to 28 U.S.C. § 2412(d) (See Doc. No. 40).

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4. The Clerk of the Court is respectfully directed to serve a copy of this Order on

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Plaintiff Daniel Kiser, 7270 Gabor Street, Valley Springs, CA 95252.

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Dated:

September 18, 2023
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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