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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HAROLD ARTHUR FOSTER, 12 Plaintiff, 13 14 15 No. 2:13-cv-1593 DAD v. 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 his application for disability benefits under Title II of the Social Security Act. By order 20 filed September 30, 2014, this case was remanded to the Commissioner with instructions to award 21 benefits. (Dkt. No. 14.) On March 2, 2015, counsel for plaintiff filed a motion for an award of 22 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 23 24 entered into a contingent-fee agreement. (Ex. 1 (Dkt. No. 19-1) at 1.1) Pursuant to that 25 agreement plaintiff‟s counsel now seeks attorney fees in the amount of $12,083.43, which 26 represents 12.5% of the retroactive disability benefits received by plaintiff on remand, for 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 approximately 33.10 hours of attorney time expended on this matter. Defendant filed a response 2 on March 16, 2015, stating that “[t]he Commissioner takes no position on whether the gross fee 3 of (sic) that Counsel requests under the Social Security Act is reasonable under the case law.” 4 (Dkt. No. 20 at 2.) 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 $12,083.43 fee, which represents 15 12.5 % of the past-due benefits paid to plaintiff, is not excessive in relation to the benefits 16 awarded. (Ex. 2 (Dkt. No. 19-2) at 1-6.) In making this determination, the court recognizes the 17 contingent fee nature of this case and counsel‟s assumption of the risk of going uncompensated in 18 agreeing to represent plaintiff on such terms. See Hearn v. Barnhart, 262 F. Supp.2d 1033, 1037 19 (N.D. Cal. 2003). Finally, counsel has submitted a detailed accounting of his billing in support of 20 the requested fee. 21 Accordingly, for the reasons stated above, the court concludes that the fees sought by 22 counsel pursuant to § 406(b) are reasonable. See generally Azevedo v. Commissioner of Social 23 Security, No. 1:11-cv-1341 AWI SAB, 2013 WL 6086666, at *2 (E.D. Cal. Nov. 19, 2013) 24 (granting petition pursuant to 406(b) for $17,893.75 in attorney‟s fees); Coulter v. Commissioner 25 of Social Security, No. 1:10-cv-1937 AWI JLT, 2013 WL 5969674, at *2 (E.D. Cal. Nov. 8, 26 2013) (recommending award of $15,084.23 in attorney‟s fees pursuant to 406(b)); Taylor v. 27 Astrue, No. 1:06-cv-00957-SMS, 2011 WL 836740, at *2 (E.D. Cal. Mar. 4, 2011) (granting 28 petition pursuant to 406(b) for $20,960 in attorneys‟ fees); Jamieson v. Astrue, No. 1:09cv0490 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 $5,300 in EAJA fees (see Dkt. No. 18) 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. 19) under 42 U.S.C. § 406(b) is 8 9 granted; 10 2. Counsel for plaintiff is awarded $12,083.43 in attorney fees under § 406(b). 11 The Commissioner is directed to pay the fee forthwith and remit to plaintiff the remainder of his 12 withheld benefits; and 13 3. Upon receipt of the $12,083.43 in attorney fees pursuant to § 406(b), counsel 14 shall reimburse plaintiff in the amount of $5,300 previously paid by the government under the 15 EAJA. 16 Dated: April 29, 2015 17 18 19 20 21 DAD:6 Ddad1\orders.soc sec\foster1593.406(b).ord.docx 22 23 24 25 26 27 28 4

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