(SS) Thompson v. Commissioner of Social Security

Filing 27

ORDER GRANTING 24 MOTION FOR ATTORNEY'S FEES PURSUANT TO 42 U.S.C. § 406(b), signed by Magistrate Judge Helena M. Barch-Kuchta on 11/25/2024. (Apodaca, P)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LISA NOVELLE THOMPSON,

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Plaintiff,

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v.
MARTIN O’MALLEY,
COMMISSIONER OF SOCIAL
SECURITY,1

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Case No. 1:21-cv-00815-HBK
ORDER GRANTING MOTION FOR
ATTORNEY'S FEES PURSUANT TO 42
U.S.C. § 406(b)2
(Doc. No. 24)

Defendant.

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Josephine M. Gerrard (“Counsel”) of Gerrard Law Offices, attorney for Lisa Novelle

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

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November 4, 2024. (Doc. No. 24). For the reasons set forth below, the motion for attorney’s fees

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is granted in the amount of $23,235.00 subject to an offset of $8,500.00 in fees previously

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awarded on October 28, 2022, under the Equal Access to Justice Act (EAJA), 28 U.S.C. §

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2412(d). (Doc. No. 23).

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The Court has substituted Martin O’Malley, who has been appointed the Acting Commissioner of Social
Security, as the defendant in this suit. See Fed. R. Civ. P. 25(d).
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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. 10).
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I. BACKGROUND

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On May 19, 2021, 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 July 15, 2022, the Court granted the parties’ stipulation to

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a voluntary remand pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. Nos. 18, 20). The

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Court entered an award of $8,500.00 for attorney fees under the Equal Access to Justice Act

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(“EAJA”) on October 28, 2022. (Doc. Nos. 22, 23).

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On remand, the Commissioner found Plaintiff disabled beginning in November 2018.

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(Doc. No. 24 at 8). Plaintiff was awarded $92,941.40 in retroactive benefits.3 (Doc. No. 24 at

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10). On November 4, 2024, Counsel filed this motion for attorney’s fees in the amount of

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$23,235.00 with an offset of $8,500.00 for EAJA fees already awarded. (Doc. No. 24 at 1-4).

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Counsel argues these fees are reasonable because the contingency fee agreement, which Plaintiff

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signed, permits Counsel to retain 25% of the past-due benefits, and the requested amount is

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reasonable. (Doc. No. 24 at 2-4, 12-13). Defendant filed a response to Plaintiff’s motion

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indicating they would neither support nor oppose Counsel’s request for attorney fees pursuant to

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24 U.S.C. § 406(b). (Doc. No. 26).

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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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As noted by Defendant, the Notice of Award letter indicated Plaintiff’s representative “cannot charge you
more than $7,200.00 for his or her work.” (Doc. No. 26 at 2 n.1 (citing Doc. No. 24 at 10)). “This refers
to attorney fees under § 406(a) for work performed at the administrative level and does not apply to work
performed before this court.” (Id.).
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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. Generally, any 406(b)

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award is offset by attorney fees granted under the EAJA. Parrish v. Comm’r of Soc. Sec. Admin.,

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698 F.3d 1215, 1219 (9th Cir. 2012)

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III. ANALYSIS
Here, Plaintiff signed a fee agreement agreeing to pay Counsel 25% of past due benefits

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awarded to Plaintiff. (Doc. No. 24 at 13). Counsel was ultimately successful in securing

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$92,941.40 in retroactive benefits for Plaintiff. (Doc. No. 24 at 10). In support of this motion,

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Counsel submitted a time sheet indicating the firm expended 56.60 hours in attorney time on this

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matter. (Doc. No. 24 at 15-16). The time Counsel spent in successfully attaining Plaintiff’s

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benefits does not appear inflated.

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Counsel’s request for $23,235.00 in fees for 56.60 hours of work results in an hourly rate

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of $410.51 for the attorney’s work. Considering the effective rate of attorney hours in cases

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involving social security contingency fee arrangements this rate appears consistent with, if not

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significantly lower, those approved by Ninth Circuit courts. Crawford v. Astrue, 586 F.3d 1142,

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1153 (9th Cir. 2009) (explaining that the majority opinion found reasonable effective hourly rates

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

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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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2020) (approving hours rate of $1,025.22 for paralegal and attorney time); Biggerstaff v. Saul,
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840 Fed. App’x 69, 71 (9th Cir. 2020) (affirming $1,400.00 per hour for combined attorney and

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paralegal work). Based on the foregoing, the Court finds the requested fees of $23,235.00 are

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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 $23,235.00 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 $8,500.00 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:

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1. Plaintiff’s Counsel’s motion for an award of attorney’s fees under § 406(b) (Doc. No.

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24) is GRANTED.
2. Plaintiff’s Counsel is awarded $23,235.00 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 $8,500.00 of the § 406(b) fees awarded as an offset

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for the EAJA fees previously awarded pursuant to 28 U.S.C. § 2412(d).
4. Plaintiff’s Counsel is directed to serve a copy of this order on Plaintiff at her current

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address.

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Dated:

November 25, 2024
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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