Kyker v. Commissioner of Social Security

Filing 36

ORDER signed by Magistrate Judge Allison Claire on 6/15/2017 GRANTING 33 Plaitniff's Motion for Attorney Fees; Counsel for plaintiff is awarded $15,867.00 in attorney's fees under Sec 406(b); the Commissioner shall certify that amoun t to be paid to counsel from the funds previously withheld for the payment of such fees 33 -7 and Counsel for plaintiff is directed to remit to plaintiff the amount of $6,295.00 for EAJA fees previously paid to counsel by the Commissioner. (Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SARA LEANN KYKER,

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No. 2:14-cv-00534 AC

Plaintiff,
v.

ORDER

NANCY A. BERYHILL, Acting
Commissioner of Social Security,
Defendant.

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Plaintiff sought judicial review of a final decision of the Commissioner of Social Security

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(“Commissioner”), denying her the application for a period of disability and disability insurance

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benefits (“DIB”) benefits under Title II of the Social Security Act (“the Act”). On May 29, 2015,

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the court granted in part plaintiff’s motion for summary judgment, denied the Commissioner’s

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cross-motion for summary judgment, and remanded the action to the Commissioner for

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immediate payment of benefits. ECF No. 15.

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Now pending before the court is plaintiff’s February 28, 2017 renewed motion for an

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award of attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 33. On March 1, 2017,

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defendant filed a response asserting that defendant “is not in a position to either assent or object”

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to the fee request. ECF No. 34. For the reasons set forth below, the motion will be granted.

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I. REASONABLENESS OF FEE REQUEST
At the outset of the representation, plaintiff and her counsel entered into a contingent-fee

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agreement. ECF No. 33-1. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s

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fees in the amount of $15,867.00 which represents 25% of the retroactive disability benefits

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received by plaintiff on remand ($15,867.00 withheld for attorney’s fees pursuant to the

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Administration’s letter to counsel at ECF No. 33-7), for 32.6 hours of attorney time expended on

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this matter. ECF No. 33-3. Plaintiff will be immediately credited the $6,295 in EAJA fees

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already received by plaintiff’s counsel. ECF No. 33 at 1-2.

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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)). The goal of fee awards under

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§ 406(b) is “‘to protect claimants against “inordinately large fees” and also to ensure that

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attorneys representing successful claimants would not risk “nonpayment of [appropriate] fees.”’”

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Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting Gisbrecht,

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535 U.S. at 805).

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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 requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“406(b) does not

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displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts

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

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boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable
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for the services rendered.” Id. at 807. “[A] district court charged with determining a reasonable

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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).

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In determining whether the requested fee is reasonable, the court considers “‘the character

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of the representation and the results achieved by the representative.’” Crawford, 586 F.3d at 1151

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(quoting Gisbrecht, 535 U.S. at 808). In determining whether a reduction in the fee is warranted,

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the court considers whether the attorney provided “substandard representation or delayed the

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case,” or obtained “benefits that are not in proportion to the time spent on the case.” Id. Finally,

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the court considers the attorney’s record of hours worked and counsel’s regular hourly billing

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charge for non-contingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at

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808); see also, E.D. Cal. R. 293(c)(1) (in fixing attorney’s fees the court considers “the time and

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labor required”). Below, the court will consider these factors in assessing whether the fee

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requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable.

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Here, plaintiff’s counsel is an experienced attorney who secured a successful result for

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plaintiff. See Declaration of Monica Perales, ECF No. 33 at 10, ¶ 7. There is no indication that a

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reduction of fees is warranted due to any substandard performance by counsel. There is also no

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evidence that plaintiff’s counsel engaged in any dilatory conduct resulting in excessive delay.

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The court finds that$ 15,867.00, which represents 25% of the past-due benefits paid to plaintiff, is

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not excessive in relation to the benefits awarded. In making this determination, the court

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recognizes the contingent fee nature of this case and counsel’s assumption of the risk of going

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uncompensated in agreeing to represent plaintiff on such terms. See Crawford, 586 F.3d at 1152

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(“[t]he attorneys assumed significant risk in accepting these cases, including the risk that no

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benefits would be awarded or that there would be a long court or administrative delay in resolving

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the cases”). Finally, counsel has submitted a detailed billing statement in support of the requested

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fee. ECF No. 33-3.

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Accordingly, for the reasons stated above, the court concludes that the fees sought by
counsel pursuant to § 406(b) are reasonable.
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II. OFFSET FOR EAJA FEES
An award of § 406(b) fees must be offset by any prior award of attorney’s fees granted

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under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796.

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Here, plaintiff’s attorney was previously awarded $6,295.00 in EAJA fees. See ECF No. 33 at 1.

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Counsel therefore must remit that amount to plaintiff.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 33), is

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GRANTED;
2. Counsel for plaintiff is awarded $15,867.00 in attorney’s fees under § 406(b); the

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Commissioner shall certify that amount to be paid to counsel from the funds previously withheld

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for the payment of such fees (see ECF No. 33-7) and

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3. Counsel for plaintiff is directed to remit to plaintiff the amount of $6,295.00 for EAJA

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fees previously paid to counsel by the Commissioner.

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DATED: June 15, 2017

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