Anderson v. Commissioner of Social Security

Filing 30

ORDER signed by Magistrate Judge Edmund F. Brennan on 12/3/2015 GRANTING 27 Plaintiff's Motion for Attorney Fees; Plaintiff's counsel is awarded $17,206.47 in fees pursuant to 42:406(b); and upon receipt of the $17.206.47 award, counsel shall refund to plaintiff the sum of $10,643.53 previously awarded under the EAJA. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GEORGE WAYNE ANDERSON,

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No. 2:12-cv-2575-EFB

Plaintiff,
v.

ORDER

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.

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Counsel for plaintiff in the above-entitled action seeks an award of attorney fees in the

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amount of $17,206.47 pursuant to 42 U.S.C. § 406(b). Counsel represented plaintiff both in this

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action and in a prior federal case related to the same application for benefits. See Anderson v.

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Colvin, 2:09-cv-3416-CMK. In this action, the court previously awarded plaintiff a fee of

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$4,476.00 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). ECF No.

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27. In plaintiff’s prior case, counsel was awarded $6,167.53 pursuant to the EAJA. Anderson v.

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Colvin, 2:09-cv-3416-CMK, ECF No. 27. Plaintiff entered into a fee agreement with his attorney

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which provides that plaintiff would pay his attorney 25 percent of any past-due benefits won as a

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result of the appeal in his case, plus expenses. Id. at 37 (Ex. F). Counsel contends that a fee of 25

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percent of past benefits is reasonable for his seven years of work on this case, but that he is only

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seeking a lesser amount of $17,206.47.1 ECF No. 27 at 3. Plaintiff’s counsel submitted a

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declaration showing that he spent 90.6 hours on plaintiff’s case.

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42 U.S.C. § 406(b)(1)(A) provides, in relevant part:

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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.

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Rather than being paid by the government, fees under the Social Security Act are awarded

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out of the claimant’s disability benefits. Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991),

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receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 1991). While

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25 percent of past due benefits is the statutory maximum fee, it is not an automatic entitlement;

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the court also must ensure that the requested fee is reasonable. Bisbrecht v. Barnhart, 535 U.S.

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789, 808-09 (2002) (“We hold that § 406(b) does not displace contingent-fee agreements within

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the statutory ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded

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by those agreements.”). “Within the 25 percent boundary . . . the attorney for the successful

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claimant must show that the fee sought is reasonable for the services rendered.” Id. at 807.

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After plaintiff was found disabled, he was awarded past-due benefits in the amount of

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$104,623.00. ECF No. 27-2. Through the instant motion, plaintiff’s counsel seeks an award of

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$17,206.47, which is substantially less than the 25 percent statutory maximum. Additionally,

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plaintiff’s counsel has already been awarded fees under EAJA in the amount of $10,643.53. ECF

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No. 27; Anderson v. Colvin, 2:09-3416-CMK, ECF No. 27. Counsel provides that upon receipt of

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a fee award in the amount of $17,934.50, he will refund the plaintiff the sum of $10,643.53

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previously awarded under the EAJA. ECF No. 29. Thus, plaintiff’s counsel seeks a total of

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$17,934.50. This would constitute an hourly rate of $197.95, based on the 90.6 hours counsel

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spent on the case. Based on the risk of loss taken in representing plaintiff, the quality of

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counsel’s representation, and his experience in the field of Social Security law, the court finds

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The Commissioner states that she has no objection to award for the amount sought.

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that rate to be reasonable. See Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003)

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(discussing cases where courts granted fees based on hourly rates from $187.55 to $694.44, and

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awarding effective hourly rate of $450.00). Further, given the result achieved in this case, the

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court finds the amount of hours expended to be reasonable. Therefore, plaintiff’s counsel should

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be awarded the sum of $17,206.47 in fees pursuant to 42 U.S.C. § 406(b). 2

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s counsel’s motion for attorney’s fees (ECF No. 27) is granted;

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2. Plaintiff’s counsel is awarded $17,206.47 in fees pursuant to 42 U.S.C. § 406(b); and

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3. Upon receipt of the $17.206.47 award, counsel shall refund to plaintiff the sum of

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$10,643.53 previously awarded under the EAJA.

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DATED: December 3, 2015.

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As mentioned herein, plaintiff’s counsel pursued, and was awarded, fees under the
EAJA in the amount of $10,643.53. Ordinarily, the EAJA award offsets any attorney’s fee
received pursuant to a contingency fee agreement. See Gisbrecht, 535 U.S. at 796 (holding that
where attorney’s fees are awarded under both EAJA and § 406(b), the attorney must refund the
smaller of the two awards to the plaintiff). Accordingly, counsel is directed to refund to plaintiff
the sum of $10,643.53 previously awarded under the EAJA.
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