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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SARA LEANN KYKER, 12 13 14 15 16 No. 2:14-cv-00534 AC Plaintiff, v. ORDER NANCY A. BERYHILL, Acting Commissioner of Social Security, Defendant. 17 18 Plaintiff sought judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying her the application for a period of disability and disability insurance 20 benefits (“DIB”) benefits under Title II of the Social Security Act (“the Act”). On May 29, 2015, 21 the court granted in part plaintiff’s motion for summary judgment, denied the Commissioner’s 22 cross-motion for summary judgment, and remanded the action to the Commissioner for 23 immediate payment of benefits. ECF No. 15. 24 Now pending before the court is plaintiff’s February 28, 2017 renewed motion for an 25 award of attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 33. On March 1, 2017, 26 defendant filed a response asserting that defendant “is not in a position to either assent or object” 27 to the fee request. ECF No. 34. For the reasons set forth below, the motion will be granted. 28 1 1 2 I. REASONABLENESS OF FEE REQUEST At the outset of the representation, plaintiff and her counsel entered into a contingent-fee 3 agreement. ECF No. 33-1. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s 4 fees in the amount of $15,867.00 which represents 25% of the retroactive disability benefits 5 received by plaintiff on remand ($15,867.00 withheld for attorney’s fees pursuant to the 6 Administration’s letter to counsel at ECF No. 33-7), for 32.6 hours of attorney time expended on 7 this matter. ECF No. 33-3. Plaintiff will be immediately credited the $6,295 in EAJA fees 8 already received by plaintiff’s counsel. ECF No. 33 at 1-2. 9 10 11 12 13 14 15 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. 16 42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42 17 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing 18 party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) 19 (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The goal of fee awards under 20 § 406(b) is “‘to protect claimants against “inordinately large fees” and also to ensure that 21 attorneys representing successful claimants would not risk “nonpayment of [appropriate] fees.”’” 22 Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting Gisbrecht, 23 535 U.S. at 805). 24 The 25% statutory maximum fee is not an automatic entitlement, and the court must 25 ensure that the fee requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“406(b) does not 26 displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts 27 to review for reasonableness fees yielded by those agreements”). “Within the 25 percent 28 boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable 2 1 for the services rendered.” Id. at 807. “[A] district court charged with determining a reasonable 2 fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee 3 arrangements,’ ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 4 Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793, 808). 5 In determining whether the requested fee is reasonable, the court considers “‘the character 6 of the representation and the results achieved by the representative.’” Crawford, 586 F.3d at 1151 7 (quoting Gisbrecht, 535 U.S. at 808). In determining whether a reduction in the fee is warranted, 8 the court considers whether the attorney provided “substandard representation or delayed the 9 case,” or obtained “benefits that are not in proportion to the time spent on the case.” Id. Finally, 10 the court considers the attorney’s record of hours worked and counsel’s regular hourly billing 11 charge for non-contingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at 12 808); see also, E.D. Cal. R. 293(c)(1) (in fixing attorney’s fees the court considers “the time and 13 labor required”). Below, the court will consider these factors in assessing whether the fee 14 requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable. 15 Here, plaintiff’s counsel is an experienced attorney who secured a successful result for 16 plaintiff. See Declaration of Monica Perales, ECF No. 33 at 10, ¶ 7. There is no indication that a 17 reduction of fees is warranted due to any substandard performance by counsel. There is also no 18 evidence that plaintiff’s counsel engaged in any dilatory conduct resulting in excessive delay. 19 The court finds that$ 15,867.00, which represents 25% of the past-due benefits paid to plaintiff, is 20 not excessive in relation to the benefits awarded. In making this determination, the court 21 recognizes the contingent fee nature of this case and counsel’s assumption of the risk of going 22 uncompensated in agreeing to represent plaintiff on such terms. See Crawford, 586 F.3d at 1152 23 (“[t]he attorneys assumed significant risk in accepting these cases, including the risk that no 24 benefits would be awarded or that there would be a long court or administrative delay in resolving 25 the cases”). Finally, counsel has submitted a detailed billing statement in support of the requested 26 fee. ECF No. 33-3. 27 28 Accordingly, for the reasons stated above, the court concludes that the fees sought by counsel pursuant to § 406(b) are reasonable. 3 1 2 II. OFFSET FOR EAJA FEES An award of § 406(b) fees must be offset by any prior award of attorney’s fees granted 3 under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. 4 Here, plaintiff’s attorney was previously awarded $6,295.00 in EAJA fees. See ECF No. 33 at 1. 5 Counsel therefore must remit that amount to plaintiff. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiff’s Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 33), is 8 9 GRANTED; 2. Counsel for plaintiff is awarded $15,867.00 in attorney’s fees under § 406(b); the 10 Commissioner shall certify that amount to be paid to counsel from the funds previously withheld 11 for the payment of such fees (see ECF No. 33-7) and 12 3. Counsel for plaintiff is directed to remit to plaintiff the amount of $6,295.00 for EAJA 13 fees previously paid to counsel by the Commissioner. 14 DATED: June 15, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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