Burton v. Commissioner of Social Security
Filing
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ORDER signed by Magistrate Judge Dale A. Drozd on 11/22/13 GRANTING 31 Motion for Attorney Fees. Counsel for plaintiff is awarded $12,784.80. Commissioner is directed to pay fee forthwith and remit to plaintiff the remainder if his withheld benefits. Upon receipt, counsel shall reimburse plaintiff in the amount of $6,000.00 previously paid by the government under the EAJA. (Manzer, C)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DONALD M. BURTON,
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Plaintiff,
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No. 2:10-cv-1279 DAD
v.
ORDER
CAROLYN W. COLVIN, Commissioner
of Social Security,
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Defendant.
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Plaintiff brought this action seeking judicial review of a final administrative
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decision denying his applications for disability benefits under Title II of the Social Security Act
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and for supplemental security income under Title XVI of the Social Security Act. By order filed
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March 14, 2012, plaintiff’s motion for summary judgment was granted in part and denied in part,
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the decision of the Commissioner was reversed and the case was remanded with the direction to
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award plaintiff benefits from July 1, 2003, through January 20, 2009. (Doc. No. 26.) On
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September 19, 2013, counsel for plaintiff filed a motion for an award of attorney’s fees pursuant
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to 42 U.S.C. § 406(b). (Doc. No. 31.)
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At the outset of the representation, plaintiff and his counsel entered into a
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contingent-fee agreement. (Ex. A to Molledal Decl. (Doc. No. 31-1) at 4.1) Pursuant to that
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agreement plaintiff’s counsel now seeks attorney fees in the amount of $12,784.80, which
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represents 25% of the retroactive disability benefits received by plaintiff on remand, for
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approximately 90 hours of attorney time expended on this matter. Plaintiff’s counsel has
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provided a declaration from plaintiff in support of the motion for attorney’s fees, (Burton Decl.
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(Doc. No. 31-2) at 1-2), and the court’s docket reflects that plaintiff has filed no objection to his
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attorney’s fee request. Defendant filed a response on October 24, 2013, (Doc. No. 36), which
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addresses the applicable factors relating to the fee request but takes no position on the
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reasonableness of the requested fee.
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Attorneys are entitled to fees for cases in which they have successfully represented
social security claimants.
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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, and the Commissioner of Social
Security may . . . certify the amount of such fee for payment to such
attorney out of, and not in addition to, the amount of such past-due
benefits.
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42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42
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U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing
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party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009)
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(en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). Although an attorney fee
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award pursuant to 42 U.S.C. § 406(b) is not paid by the government, the Commissioner has
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standing to challenge the award. Craig v. Sec’y Dep’t of Health & Human Servs., 864 F.2d 324,
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328 (4th Cir. 1989). The goal of fee awards under § 406(b) is to provide adequate incentive to
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attorneys for representing claimants while ensuring that the usually meager disability benefits
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received are not greatly depleted. Cotter v. Bowen, 879 F.2d 359, 365 (8th Cir. 1989).
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Page number citations such as this one are to the page number reflected on the court’s CM/ECF
system and not to page numbers assigned by the parties.
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The 25% statutory maximum fee is not an automatic entitlement, and the court
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must ensure that the fee actually requested is reasonable. Gisbrecht, 535 U.S. at 808-09
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(“[Section] 406(b) does not displace contingent-fee agreements within the statutory ceiling;
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instead, § 406(b) instructs courts to review for reasonableness fees yielded by those
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agreements.”). “Within the 25 percent boundary . . . the attorney for the successful claimant must
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show that the fee sought is reasonable for the services rendered.” Id. at 807. “[A] district court
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charged with determining a reasonable fee award under § 406(b)(1)(A) must respect ‘the primacy
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of lawful attorney-client fee arrangements,’ ‘looking first to the contingent-fee agreement, then
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testing it for reasonableness.’” Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793
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& 808). The Supreme Court has identified five factors that may be considered in determining
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whether a fee award under a contingent-fee arrangement is unreasonable and therefore subject to
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reduction by the court: (1) the character of the representation; (2) the results achieved by the
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representative; (3) whether the attorney engaged in dilatory conduct in order to increase the
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accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the
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amount of time counsel spent on the case; and (5) the attorney’s record of hours worked and
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counsel’s regular hourly billing charge for noncontingent cases. Crawford, 586 F.3d at 1151-52
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(citing Gisbrecht, 535 U.S. at 808). Below the court will consider these factors in assessing
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whether the fee requested by counsel pursuant to 42 U.S.C. § 406(b) is reasonable.
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Here, there is no indication that a reduction of fees is warranted due to any
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substandard performance by counsel. Rather, counsel is an experienced attorney who secured a
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successful result for plaintiff. There is also no evidence that plaintiff’s counsel engaged in any
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dilatory conduct resulting in excessive delay. The court finds that the $12,784.80 fee, which
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represents 25 % of the past-due benefits paid to plaintiff, is not excessive in relation to the past-
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due award. (Ex. B to Molleda Decl. (Doc. No. 31-1) at 8.) In making this determination, the
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court recognizes the contingent fee nature of this case and counsel’s assumption of the risk of
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going uncompensated in agreeing to represent plaintiff on such terms. See Hearn v. Barnhart,
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262 F. Supp.2d 1033, 1037 (N.D. Cal. 2003). Finally, counsel has submitted a detailed billing
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statement in support of the requested fee.2
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Accordingly, for the reasons stated above, the court concludes that the fees sought
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by counsel pursuant to § 406(b) are reasonable. See generally Azevedo v. Commissioner of
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Social Security, No. 1:11-cv-1341 AWI SAB, 2013 WL 6086666, at *2 (E.D. Cal. Nov. 19, 2013)
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(granting petition pursuant to 406(b) for $17,893.75 in attorney’s fees); Coulter v. Commissioner
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of Social Security, No. 1:10-cv-1937 AWI JLT, 2013 WL 5969674, at *2 (E.D. Cal. Nov. 8,
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2013) (recommending award of $15,084.23 in attorney’s fees pursuant to 406(b)); Taylor v.
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Astrue, No. 1:06-cv-00957-SMS, 2011 WL 836740, at *2 (E.D. Cal. Mar. 4, 2011) (granting
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petition pursuant to 406(b) for $20,960 in attorneys’ fees); Jamieson v. Astrue, No. 1:09cv0490
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LJO DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011) (recommending award of $34,500 in
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attorney fees pursuant to 406(b)).
An award of § 406(b) fees is, however, offset by any prior award of attorney’s fees
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granted under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S.
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at 796. Here, plaintiff’s counsel was previously awarded $6,000 in EAJA fees (see Doc. No. 30)
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and the award under § 406(b) must be offset by that amount.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s motion for attorney fees (Doc. No. 31) under 42 U.S.C. § 406(b) is
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granted;
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2. Counsel for plaintiff is awarded $12,784.80 in attorney fees under § 406(b).
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The Commissioner is directed to pay the fee forthwith and remit to plaintiff the remainder of his
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withheld benefits; and
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The court would also note that a fee award of $12,784.80 for 90 hours of attorney time reflects
an effective hourly rate of $142 per hour. Such an hourly rate is well below the rate the court
would consider reasonable for the services rendered by counsel here.
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3. Upon receipt of the $12,784.80 in attorney fees pursuant to § 406(b), counsel
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shall reimburse plaintiff in the amount of $6,000 previously paid by the government under the
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EAJA.
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Dated: November 22, 2013
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DAD:6
Ddad1/orders.socsec/burton1279.attyfees.406(b).ord.docx
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