Foster v. Commissioner of Social Security

Filing 21

ORDER signed by Magistrate Judge Dale A. Drozd on 4/29/2015 ORDERING 19 Plaintiff's Motion for Attorney Fees is GRANTED; Counsel for plaintiff is awarded $12,083.43 in attorney fees under Sec 406(b); the Commissioner is directed to pay th e fee forthwith and remit to plaintiff the remainder of his withheld benefits; and upon receipt of the $12,083.43 in attorney fees pursuant to Sec 406(b), counsel shall reimburse plaintiff in the amount of $5,300 previously paid by the government 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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HAROLD ARTHUR FOSTER,

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Plaintiff,

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No. 2:13-cv-1593 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 decision

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denying his application for disability benefits under Title II of the Social Security Act. By order

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filed September 30, 2014, this case was remanded to the Commissioner with instructions to award

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benefits. (Dkt. No. 14.) On March 2, 2015, counsel for plaintiff filed a motion for an award of

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attorney‟s fees pursuant to 42 U.S.C. § 406(b). (Dkt. No. 19.)
According to the motion, at the outset of the representation, plaintiff and his counsel

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entered into a contingent-fee agreement. (Ex. 1 (Dkt. No. 19-1) at 1.1) Pursuant to that

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agreement plaintiff‟s counsel now seeks attorney fees in the amount of $12,083.43, which

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represents 12.5% of the retroactive disability benefits received by plaintiff on remand, for

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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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approximately 33.10 hours of attorney time expended on this matter. Defendant filed a response

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on March 16, 2015, stating that “[t]he Commissioner takes no position on whether the gross fee

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of (sic) that Counsel requests under the Social Security Act is reasonable under the case law.”

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(Dkt. No. 20 at 2.)

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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.

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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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The 25% statutory maximum fee is not an automatic entitlement, and the court must

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ensure that the fee actually requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“[Section]

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406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b)

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instructs courts to review for reasonableness fees yielded by those agreements.”). “Within the 25

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percent boundary . . . the attorney for the successful claimant must show that the fee sought is

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reasonable for the services rendered.” Id. at 807. “[A] district court charged with determining a

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reasonable fee award under § 406(b)(1)(A) must respect „the primacy of lawful attorney-client fee

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arrangements,‟ „looking first to the contingent-fee agreement, then testing it for reasonableness.‟”
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Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793 & 808). The Supreme Court has

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identified five factors that may be considered in determining whether a fee award under a

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contingent-fee arrangement is unreasonable and therefore subject to reduction by the court: (1)

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the character of the representation; (2) the results achieved by the representative; (3) whether the

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attorney engaged in dilatory conduct in order to increase the accrued amount of past-due benefits;

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(4) whether the benefits are large in comparison to the amount of time counsel spent on the case;

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and (5) the attorney‟s record of hours worked and counsel‟s regular hourly billing charge for

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noncontingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at 808). Below

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the court will consider these factors in assessing whether the fee requested by counsel in this case

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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 substandard

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performance by counsel. Rather, counsel is an experienced attorney who secured a successful

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result for plaintiff. There is also no evidence that plaintiff‟s counsel engaged in any dilatory

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conduct resulting in excessive delay. The court finds that the $12,083.43 fee, which represents

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12.5 % of the past-due benefits paid to plaintiff, is not excessive in relation to the benefits

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awarded. (Ex. 2 (Dkt. No. 19-2) at 1-6.) In making this determination, the court recognizes the

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contingent fee nature of this case and counsel‟s assumption of the risk of going uncompensated in

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agreeing to represent plaintiff on such terms. See Hearn v. Barnhart, 262 F. Supp.2d 1033, 1037

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(N.D. Cal. 2003). Finally, counsel has submitted a detailed accounting of his billing in support of

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the requested fee.

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Accordingly, for the reasons stated above, the court concludes that the fees sought by

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counsel pursuant to § 406(b) are reasonable. See generally Azevedo v. Commissioner of Social

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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)).

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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 $5,300 in EAJA fees (see Dkt. No. 18)

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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:
1. Plaintiff‟s motion for attorney fees (Dkt. No. 19) under 42 U.S.C. § 406(b) is

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granted;

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2. Counsel for plaintiff is awarded $12,083.43 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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3. Upon receipt of the $12,083.43 in attorney fees pursuant to § 406(b), counsel

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shall reimburse plaintiff in the amount of $5,300 previously paid by the government under the

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EAJA.

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Dated: April 29, 2015

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DAD:6
Ddad1\orders.soc sec\foster1593.406(b).ord.docx

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