Ross v. Commissioner of Social Security

Filing 23

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/10/2015 ORDERING that plaintiff's counsel is awarded $5,955.00 in attorney fees pursuant to 28 U.S.C. § 406(b). No offset shall be made for the fees previously awarded under EAJA. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN ROSS,

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No. 2:13-cv-2127 CKD
Plaintiff,

v.

ORDER

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

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Based on 42 U.S.C. § 406(b), counsel for plaintiff in the above-entitled action seeks an

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award of attorney fees in the amount of $5,955.00 for 23.8 hours of professional time devoted to

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the representation of plaintiff before this court. Counsel contends that this amount should not be

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offset in the amount of $4,000.00 for fees previously awarded under EAJA because the

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Department of the Treasury applied the entire amount of the EAJA award to pay down plaintiff’s

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federal debt.

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

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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. 2001).

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However, the 25 percent statutory maximum fee is not an automatic entitlement; the court also

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must ensure that the requested fee is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 808-09

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(2002) (“We hold that § 406(b) does not displace contingent-fee agreements within the statutory

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

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agreements.”). “Within the 25 percent boundary ... the attorney for the successful claimant must

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

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Counsel seeks fees for 23.8 hours. Based on the quality of counsel’s representation and

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the results achieved in this case, the undersigned finds the amount of hours expended to be

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reasonable. The hourly rate of $250.22 is also reasonable. Accordingly, the undersigned will

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award the amount of attorney fees requested. Because plaintiff’s counsel has received no part of

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the fees previously awarded under EAJA, no offset will be made.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s counsel is awarded $5,955.00 in

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attorney fees pursuant to 28 U.S.C. § 406(b). No offset shall be made for the fees previously

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awarded under EAJA.

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Dated: December 10, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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4 ross.ss.406.fee

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