Gordon v. Commissioner of Social Security

Filing 29

ORDER signed by Magistrate Judge Gregory G. Hollows on 8/10/2012 GRANTING 28 Amended Motion for Attorney Fees; ORDERING the Commissioner to pay the Plaintiff's counsel in this case, the sum of $9,625.76 in § 406(b) attorneys fees; ORDERING that the remainder withheld from the back benefits awardableto the plaintiff to be disbursed to the plaintiff. (Michel, G)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BONNIE LYNN GORDON,

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Plaintiff,

No. 2:10-CV-1198 GGH

vs.

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MICHAEL J. ASTRUE,
Commissioner of
Social Security,

ORDER

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Defendant.
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On August 24, 2011, plaintiff obtained a judgment remanding her case to the

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Commissioner of Social Security (“Commissioner”) for payment of benefits. (Dkt. Nos. 19-20.)

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Plaintiff’s counsel, having subsequently been awarded $5,900.00 in EAJA fees for court work in

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this Social Security disability case pursuant to a stipulation with the Commissioner (dkt. no. 26),

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has now applied for fees pursuant to the retainer agreement and 42 U.S.C. § 406(b), so that the

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legally capped 25% of back benefits awarded to plaintiff will be payable to counsel. (Dkt. No.

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28.) That is, counsel seeks $9,625.76 in addition to the already awarded $5,900.00 so that the

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25% figure ($15,525.76) is the amount counsel will actually receive in total.

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The Commissioner, typically acting not as an adversary but as an adviser to the

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court with respect to these fee requests, did not file a response. As such, it is assumed that the
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Commissioner does not contest the quality of the work; nor does the undersigned. Counsel was

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not dilatory in her work, and the case involved matters routinely adjudicated in Social Security

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disability cases.

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Although plaintiff’s counsel did not give information about her normal billing

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rate, her prior briefing with respect to the motion for EAJA fees stated that plaintiff’s counsel

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spent approximately 36.95 hours on the case in 2010 and 2011. (Dkt. No. 24-2.) If the total fees

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sought by counsel, both from EAJA and § 406(b) are considered, counsel’s computed hourly rate

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would be approximately $420.18 ($15,525.76 divided by 36.95 hours).

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In Crawford v. Astrue, 586 F.3d 1142 (9th Cir. 2009) (en banc), the Ninth Circuit

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emphasized the “primacy” of the retainer agreement in assessing whether § 406 fees were

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reasonable. Factors which could detract from this primacy were whether counsel’s work was

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substandard, whether counsel had unnecessarily delayed work in the case (thus resulting in a

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higher back pay award from which fees could be computed) or that the § 406 fees requested

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would constitute a “windfall,” i.e. would not be proportional to the time spent on the case.1

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Computed hourly rates in the Crawford trilogy of combined cases of up to $900 per hour

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(computed by dividing the total amount sought by the number of hours expended) were found to

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be reasonable. Although Crawford, almost grudgingly, permitted a reviewing court to compare

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the actual computed hourly rate with a reasonable hourly rate, the Ninth Circuit evidently

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believes a rate of $900 per hour to be reasonable. There are no precise standards given in

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Crawford as to what might seem out of bounds for a reasonable hourly rate. Crawford also

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focused on the fact that in its cases, the attorneys involved, perhaps with a pang of conscience,

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did not seek to recover the entire 25% maximum allowed under the statute. In the view of

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Crawford, this fact made the attorneys’ requests reasonable.

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This last factor was not defined or explained in much detail. In practice, the more
efficient counsel is in court, the higher will be the hourly fee amount represented in a § 406 fee
award.
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The court is tasked with reviewing the reasonableness of § 406 (b) fee requests

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because these fees are taken from the amount of disability benefits, of which payment to the

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disability plaintiff has been delayed over the course of the disability adjudication in court.

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Generally, the disability claimants are not well to do. Based on the Crawford court’s finding that

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hourly rates of up to $900 were not excessive, counsel’s request for $420.18 per hour appears

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acceptable. As such, the undersigned could not apply Crawford and find the § 406(b) fees sought

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here unreasonable. Reducing § 406(b) fees after Crawford is a dicey business.

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CONCLUSION

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1. Plaintiff’s counsel’s motion for attorneys’ fees under § 406(b) (dkt. no. 28) is
GRANTED.

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2. The Commissioner shall pay plaintiff’s counsel in this case the sum of

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$9,625.76 in § 406(b) attorneys’ fees. The remainder withheld from the back benefits awardable

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to plaintiff shall be disbursed to plaintiff.

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DATED: August 10, 2012

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/s/ Gregory G. Hollows

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UNITED STATES MAGISTRATE JUDGE

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GGH/wvr
Gordon.1198.406b.wpd

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