Haverlock v. Commissioner of Social Security

Filing 34

ORDER signed by Magistrate Judge Deborah Barnes on 6/15/2017 GRANTING 31 Plaintiff's Motion for Attorney Fees; Counsel for plaintiff is awarded $25,683.00 in attorney fees under Sec 406(b). The Commissioner is directed to pay the fee fort hwith and remit to plaintiff the remainder any withheld benefits; and upon receipt of the $25,638.00 in attorney fees pursuant to Sec 406(b), counsel shall reimburse plaintiff in the amount of $7,500 previously paid by the government under the EAJA. (Reader, L)

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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 LAURA FAYE HAVERLOCK, 12 Plaintiff, 13 14 15 No. 2:12-cv-2393 DB v. ORDER NANCY A. BERRYHILL, Acting 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 Insurance Benefits under Title II of the Social Security Act. 20 By order filed February 20, 2014, plaintiff’s motion for summary judgment was granted, the 21 decision of the Commissioner was reversed and the case was remanded for further proceedings.1 22 (ECF No. 28.) On April 4, 2017, counsel for plaintiff filed a motion for an award of attorney’s fees 23 24 pursuant to 42 U.S.C. § 406(b). (ECF No. 31.) At the outset of the representation, plaintiff and 25 her counsel entered into a contingent-fee agreement. (ECF No. 31-2 at 1-2.2) Pursuant to that 26 27 28 1 Both parties have previously consented to Magistrate Judge jurisdiction in this action pursuant to 28 U.S.C. § 636(c). (See ECF Nos. 7 & 9.) 2 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 agreement plaintiff’s counsel now seeks attorney’s fees in the amount of $25,638.00, which 2 represents 25% of the retroactive disability benefits received by plaintiff on remand, for 3 approximately 49.1 hours of attorney time expended on this matter. (ECF No. 31 at 5; ECF No. 4 31-1 at 3.) Defendant filed a response to plaintiff’s motion on April 18, 2017. (ECF No. 33.) 5 Defendant’s response addresses the applicable factors relating to counsel’s fee request but takes 6 no position on the reasonableness of the requested fee. (Id. at 6.) 7 8 9 10 11 12 13 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. 14 42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42 15 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing 16 party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) 17 (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). Although an attorney fee 18 award pursuant to 42 U.S.C. § 406(b) is not paid by the government, the Commissioner has 19 standing to challenge the award. Craig v. Sec’y Dep’t of Health & Human Servs., 864 F.2d 324, 20 328 (4th Cir. 1989). The goal of fee awards under § 406(b) is to provide adequate incentive to 21 attorneys for representing claimants while ensuring that the usually meager disability benefits 22 received are not greatly depleted. Cotter v. Bowen, 879 F.2d 359, 365 (8th Cir. 1989). 23 The 25% statutory maximum fee is not an automatic entitlement, and the court must 24 ensure that the fee actually requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“[Section] 25 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) 26 instructs courts to review for reasonableness fees yielded by those agreements.”). “Within the 25 27 percent boundary . . . the attorney for the successful claimant must show that the fee sought is 28 reasonable for the services rendered.” Id. at 807. “[A] district court charged with determining a 2 1 reasonable fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee 2 arrangements,’ ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 3 Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793 & 808). 4 The Supreme Court has identified five factors that may be considered in determining 5 whether a fee award under a contingent-fee arrangement is unreasonable and therefore subject to 6 reduction by the court: (1) the character of the representation; (2) the results achieved by the 7 representative; (3) whether the attorney engaged in dilatory conduct in order to increase the 8 accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the 9 amount of time counsel spent on the case; and (5) the attorney’s record of hours worked and 10 counsel’s regular hourly billing charge for noncontingent cases. Crawford, 586 F.3d at 1151-52 11 (citing Gisbrecht, 535 U.S. at 808). Below, the court will consider these factors in assessing 12 whether the fee requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable. 13 Here, there is no indication that a reduction of fees is warranted due to any substandard 14 performance by counsel. Rather, plaintiff’s counsel is an experienced attorney who secured a 15 successful result for plaintiff. There is also no evidence that plaintiff’s counsel engaged in any 16 dilatory conduct resulting in excessive delay. The court finds that the $25,638.00 fee, which 17 represents 25% of the past-due benefits paid to plaintiff, is not excessive in relation to the benefits 18 awarded. In making this determination, the court recognizes the contingent fee nature of this case 19 and counsel’s assumption of the risk of going uncompensated in agreeing to represent plaintiff on 20 such terms. See Hearn v. Barnhart, 262 F. Supp.2d 1033, 1037 (N.D. Cal. 2003). Finally, 21 counsel has submitted a detailed billing statement in support of the requested fee. (ECF No. 31 at 22 9-10.) 23 Accordingly, for the reasons stated above, the court concludes that the fees sought by 24 counsel pursuant to § 406(b) are reasonable. See generally Azevedo v. Commissioner of Social 25 Security, No. 1:11-cv-1341 AWI SAB, 2013 WL 6086666, at *2 (E.D. Cal. Nov. 19, 2013) 26 (granting petition pursuant to 406(b) for $17,893.75 in attorney’s fees); Coulter v. Commissioner 27 of Social Security, No. 1:10-cv-1937 AWI JLT, 2013 WL 5969674, at *2 (E.D. Cal. Nov. 8, 28 2013) (recommending award of $15,084.23 in attorney’s fees pursuant to 406(b)); Taylor v. 3 1 Astrue, No. 1:06-cv-00957-SMS, 2011 WL 836740, at *2 (E.D. Cal. Mar. 4, 2011) (granting 2 petition pursuant to 406(b) for $20,960 in attorneys’ fees); Jamieson v. Astrue, No. 1:09cv0490 3 LJO DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011) (recommending award of $34,500 in 4 attorney fees pursuant to 406(b)). 5 An award of § 406(b) fees is, however, offset by any prior award of attorney’s fees 6 granted under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. 7 at 796. Here, plaintiff’s counsel was previously awarded $7,500 in EAJA fees (see ECF No. 30) 8 and the award under § 406(b) must be offset by that amount. 9 Accordingly, IT IS HEREBY ORDERED that: 10 11 12 1. Plaintiff’s April 4, 2017 motion for attorney fees under 42 U.S.C. § 406(b), (ECF No. 31), is granted; 2. Counsel for plaintiff is awarded $25,683.00 in attorney fees under § 406(b). The 13 Commissioner is directed to pay the fee forthwith and remit to plaintiff the remainder any 14 withheld benefits; and 15 3. Upon receipt of the $25,638.00 in attorney fees pursuant to § 406(b), counsel shall 16 reimburse plaintiff in the amount of $7,500 previously paid by the government under the EAJA. 17 Dated: June 15, 2017 18 19 20 21 22 23 24 25 DLB:6 DB\orders\orders.soc sec\haverlock2393.406(b).ord 26 27 28 4

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