Kirk v. Commissioner of Social Security

Filing 41

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/5/2020 GRANTING 36 Motion for Attorney Fees. Plaintiff's counsel is awarded $30,612.65 in fees pursuant to 42 U.S.C. § 406(b); and Upon receipt of the $30,612.65 award, counsel shall refund to Plaintiff the sum of $19,804.25 previously awarded under the EAJA. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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VONDA K. KIRK,

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Plaintiff,

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No. 2:13-cv-2571-EFB

v.

ORDER

ANDREW SAUL, Commissioner of Social
Security,
Defendant.

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Pursuant to 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 $30,612.65, which is less than 22 percent of past benefits

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due to plaintiff.1 ECF No. 36. Plaintiff entered into a retainer agreement with her attorney which

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provides that she would pay counsel 25 percent of any past-due benefits won as a result of the

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appeal in this case. ECF No. 37-1. The court previously determined that counsel reasonably

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expended 104.2 hours litigating plaintiff’s case. ECF No. 35.

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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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The Commissioner does not oppose counsel’s request. ECF No. 40.
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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).

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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. Bisbrecht 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. A “court may

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properly reduce the fee for substandard performance, delay, or benefits that are not in proportion

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to the time spent on the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (en

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banc).

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After this court remanded the case for further proceedings, plaintiff was found disabled

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and awarded past-due benefits in the amount of $140,255. ECF No. 37-2. Plaintiff’s counsel’s

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request for $30,612.65, which is less than the statutory maximum, would constitute an hourly rate

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of $293.79. Counsel did not delay these procedures, and her representation of plaintiff was not

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substandard. Indeed, she successfully represented her client’s interests before this court. More

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significant, the hourly rate is reasonable given the risk of loss taken in representing plaintiff,

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counsel’s experience in the field of Social Security law, and the results achieved in this case. See

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De Vivo v. Berryhill, No. 1:15-cv-1332-EPG, 2018 WL 4262007 (E.D. Cal. Sept. 6, 2018)

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(awarding fees at effective hourly range of $1,116.26); Jamieson v. Astrue, No. 1:09cv0490 LJO

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DLB, 2011 WL 587096 (E.D. Cal. Feb. 9, 2011) (finding fee at effective hourly rate of $1,169.49

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reasonable); Naddour v. Colvin, No.: 13-CV-1407-BAS, 2016 WL 4248557 (S.D. Cal. Aug. 11,

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2016) (awarding fee at effective hourly rate of $1,063); Kazanjian v. Astrue, No. 09 civ. 3678

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(BMC), 2011 WL 2847439, at *1-2 (E.D.N.Y. July 15, 2011) (finding that counsel “performed

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well, diligently, and with unusual efficiency,” and awarding fee at hourly rate of $2,100).

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Counsel concedes that the $30,612.65 award should be offset in the amount of $19,804.25
for fees previously awarded under the Equal Access to Justice Act (“EAJA”). ECF No. 36 at 9.
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Counsel provides that upon receipt of a fee award in the amount of $30,612.65, she will refund

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plaintiff the sum of $19,804.25 previously awarded under the EAJA. Id. See Gisbrecht v.

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Barnhart, 535 U.S. 789, 796 (2002) (holding that where attorney’s fees are awarded under both

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EAJA and § 406(b), the attorney must refund the smaller of the two awards to the plaintiff).

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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. 36) is granted;

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2. Plaintiff’s counsel is awarded $30,612.65 in fees pursuant to 42 U.S.C. § 406(b); and

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3. Upon receipt of the $30,612.65 award, counsel shall refund to plaintiff the sum of

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$19,804.25 previously awarded under the EAJA.
DATED: February 5, 2020.

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