Watson v. Commissioner of Social Security

Filing 40

ORDER signed by Magistrate Judge Dale A. Drozd on 3/11/14 GRANTING 37 Motion for Attorney Fees. Counsel for plaintiff is awarded $12,090 in attorney fees. Upon receipt counsel shall reimburse plaintiff in the amount of $5,200 previously paid by the government under the EAJA. (Manzer, C)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KRISTINE W. WATSON, 12 Plaintiff, 13 14 15 v. No. 2:11-cv-2232 DAD ORDER CAROLYN W. COLVIN, Commissioner of Social Security, 16 Defendant. 17 Plaintiff brought this action seeking judicial review of a final administrative decision 18 19 denying her application for disability benefits under Title II of the Social Security. By order filed 20 September 21, 2012, plaintiff’s motion for summary judgment was granted, the decision of the 21 Commissioner was reversed and the case was remanded for further proceedings. (Dkt. No. 33.) 22 On November 18, 2013, counsel for plaintiff filed a motion for an award of attorney’s fees 23 pursuant to 42 U.S.C. § 406(b). (Dkt. No. 37.) At the outset of the representation, plaintiff and her counsel entered into a contingent-fee 24 25 agreement. (Ex. C (Dkt. No. 38-3) at 3.1) Pursuant to that agreement plaintiff’s counsel now 26 seeks attorney fees in the amount of $12,090, which represents 25% of the retroactive disability 27 1 28 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. 1 1 benefits received by plaintiff on remand, for approximately 31.90 hours of attorney time 2 expended on this matter. Defendant filed a response on December 3, 2013, (Dkt. No. 39), which 3 addresses the applicable factors relating to counsel’s fee request but takes no position on the 4 reasonableness of the requested fee. 5 6 7 8 9 10 11 Attorneys are entitled to fees for cases in which they have successfully represented social security claimants. 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. 12 42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42 13 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing 14 party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) 15 (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). Although an attorney fee 16 award pursuant to 42 U.S.C. § 406(b) is not paid by the government, the Commissioner has 17 standing to challenge the award. Craig v. Sec’y Dep’t of Health & Human Servs., 864 F.2d 324, 18 328 (4th Cir. 1989). The goal of fee awards under § 406(b) is to provide adequate incentive to 19 attorneys for representing claimants while ensuring that the usually meager disability benefits 20 received are not greatly depleted. Cotter v. Bowen, 879 F.2d 359, 365 (8th Cir. 1989). 21 The 25% statutory maximum fee is not an automatic entitlement, and the court must 22 ensure that the fee actually requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“[Section] 23 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) 24 instructs courts to review for reasonableness fees yielded by those agreements.”). “Within the 25 25 percent boundary . . . the attorney for the successful claimant must show that the fee sought is 26 reasonable for the services rendered.” Id. at 807. “[A] district court charged with determining a 27 reasonable fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee 28 arrangements,’ ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 2 1 Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793 & 808). The Supreme Court has 2 identified five factors that may be considered in determining whether a fee award under a 3 contingent-fee arrangement is unreasonable and therefore subject to reduction by the court: (1) 4 the character of the representation; (2) the results achieved by the representative; (3) whether the 5 attorney engaged in dilatory conduct in order to increase the accrued amount of past-due benefits; 6 (4) whether the benefits are large in comparison to the amount of time counsel spent on the case; 7 and (5) the attorney’s record of hours worked and counsel’s regular hourly billing charge for 8 noncontingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at 808). Below 9 the court will consider these factors in assessing whether the fee requested by counsel in this case 10 pursuant to 42 U.S.C. § 406(b) is reasonable. 11 Here, there is no indication that a reduction of fees is warranted due to any substandard 12 performance by counsel. Rather, counsel is an experienced attorney who secured a successful 13 result for plaintiff. There is also no evidence that plaintiff’s counsel engaged in any dilatory 14 conduct resulting in excessive delay. The court finds that the $12,090 fee, which represents 25 % 15 of the past-due benefits paid to plaintiff, is not excessive in relation to the benefits awarded. (Ex. 16 B (Dkt. No. 38-2) at 1-5.) In making this determination, the court recognizes the contingent fee 17 nature of this case and counsel’s assumption of the risk of going uncompensated in agreeing to 18 represent plaintiff on such terms. See Hearn v. Barnhart, 262 F. Supp.2d 1033, 1037 (N.D. Cal. 19 2003). Finally, counsel has submitted a detailed billing statement in support of the requested fee. 20 Accordingly, for the reasons stated above, the court concludes that the fees sought by 21 counsel pursuant to § 406(b) are reasonable. See generally Azevedo v. Commissioner of Social 22 Security, No. 1:11-cv-1341 AWI SAB, 2013 WL 6086666, at *2 (E.D. Cal. Nov. 19, 2013) 23 (granting petition pursuant to 406(b) for $17,893.75 in attorney’s fees); Coulter v. Commissioner 24 of Social Security, No. 1:10-cv-1937 AWI JLT, 2013 WL 5969674, at *2 (E.D. Cal. Nov. 8, 25 2013) (recommending award of $15,084.23 in attorney’s fees pursuant to 406(b)); Taylor v. 26 Astrue, No. 1:06-cv-00957-SMS, 2011 WL 836740, at *2 (E.D. Cal. Mar. 4, 2011) (granting 27 petition pursuant to 406(b) for $20,960 in attorneys’ fees); Jamieson v. Astrue, No. 1:09cv0490 28 ///// 3 1 LJO DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011) (recommending award of $34,500 in 2 attorney fees pursuant to 406(b)). 3 An award of § 406(b) fees is, however, offset by any prior award of attorney’s fees 4 granted under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. 5 at 796. Here, plaintiff’s counsel was previously awarded $5,200 in EAJA fees (see Dkt. No. 36) 6 and the award under § 406(b) must be offset by that amount. 7 Accordingly, IT IS HEREBY ORDERED that: 1. Plaintiff’s motion for attorney fees (Dkt. No. 37) under 42 U.S.C. § 406(b) is 8 9 10 granted; 2. Counsel for plaintiff is awarded $12,090 in attorney fees under § 406(b). The 11 Commissioner is directed to pay the fee forthwith and remit to plaintiff the remainder of her 12 withheld benefits; and 13 3. Upon receipt of the $12,090 in attorney fees pursuant to § 406(b), counsel shall 14 reimburse plaintiff in the amount of $5,200 previously paid by the government under the EAJA. 15 Dated: March 11, 2014 16 17 18 19 DAD:6 Ddad1/orders.soc sec/watson2232.attyfees.406(b).ord.docx 20 21 22 23 24 25 26 27 28 4

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