Clark v. Colvin

Filing 34

ORDER signed by Magistrate Judge Deborah Barnes on 8/2/2019 GRANTING 27 Motion for Attorney Fees. Counsel for plaintiff is awarded $13,635.50 in attorney fees under Sec 406(b). The Commissioner is directed to pay the fee forthwith and remit t o plaintiff the remainder any withheld benefits, and upon receipt of the $13,635.50 in attorney fees pursuant to Sec 406(b), counsel shall reimburse plaintiff in the amount of $10,265.77 previously paid by the government under the EAJA.(Reader, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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SHARON KAY CLARK,

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No. 2:14-cv-00851 DB

Plaintiff,

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v.

ORDER

ANDREW M. SAUL,1 Commissioner of
Social Security,

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Defendant.

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Plaintiff brought this action seeking judicial review of a final administrative decision

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denying an application for Supplemental Security Income under Title II of the Social Security

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Act.2 By order filed March 9, 2016, plaintiff’s motion for summary judgment was granted, the

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decision of the Commissioner was reversed, and the case was remanded for further proceedings.3

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(ECF No. 19.)

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Andrew M. Saul is substituted as defendant pursuant to Fed. R. Civ. P. 25(d).

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Both parties have previously consented to Magistrate Judge jurisdiction over this action
pursuant to 28 U.S.C. § 636(c). (ECF Nos. 8 & 10.)
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On August 3, 2016, the action was reassigned from the previously assigned Magistrate Judge to
the undersigned. (ECF No. 25.)
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On March 21, 2019, counsel for plaintiff filed a motion for an award of attorney’s fees

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pursuant to 42 U.S.C. § 406(b). (ECF No. 27.) At the outset of the representation, plaintiff and

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plaintiff’s counsel entered into a contingent-fee agreement. (ECF No. 27-1.) Pursuant to that

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agreement plaintiff’s counsel now seeks attorney’s fees in the amount of $13,635.50, which

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represents 25% of the retroactive disability benefits received by plaintiff on remand, for

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approximately 75.25 hours expended on this matter. (ECF No. 27 at 8.4) On March 28, 2019.

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defendant filed a non-opposition to plaintiff’s motion for attorney’s fees. (ECF No. 30.)

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Attorneys are entitled to fees for cases in which they have successfully represented social
security claimants.

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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, 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)). Although an attorney fee

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award pursuant to 42 U.S.C. § 406(b) is not paid by the government, the Commissioner has

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standing to challenge the award. Craig v. Sec’y Dep’t of Health & Human Servs., 864 F.2d 324,

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328 (4th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807. The goal of fee

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awards under § 406(b) is to provide adequate incentive to attorneys for representing claimants

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while ensuring that the usually meager disability benefits received are not greatly depleted.

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Cotter v. Bowen, 879 F.2d 359, 365 (8th Cir. 1989).

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The 25% statutory maximum fee is not an automatic entitlement, and the court must
ensure that the fee actually requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“[Section]
Page number citations such as this one are to the page numbers reflected on the court’s
CM/ECF system and not to page numbers assigned by the parties.
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406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b)

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

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percent boundary . . . the attorney for the successful claimant must show that the fee sought is

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reasonable for the services rendered.” Id. at 807. “[A] district court charged with determining a

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reasonable 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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The Supreme Court has identified five factors that may be considered in determining
whether a fee award under a contingent-fee arrangement is unreasonable and therefore subject to

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reduction by the court: (1) the character of the representation; (2) the results achieved by the

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representative; (3) whether the attorney engaged in dilatory conduct in order to increase the

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accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the

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amount of time counsel spent on the case; and (5) the attorney’s record of hours worked and

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counsel’s regular hourly billing charge for noncontingent cases. Crawford, 586 F.3d at 1151-52

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(citing Gisbrecht, 535 U.S. at 808). Below, the court will consider these factors in assessing

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

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Here, there is no indication that a reduction of fees is warranted due to any substandard

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performance by counsel. Rather, plaintiff’s counsel is an experienced attorney who secured a

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successful result for plaintiff. There is also no evidence that plaintiff’s counsel engaged in any

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dilatory conduct resulting in excessive delay. The court finds that the $13,635.50 fee, which

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represents 25% of the past-due benefits paid to plaintiff, is not excessive in relation to the benefits

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awarded. In making this determination, the court recognizes the contingent fee nature of this case

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and counsel’s assumption of the risk of going uncompensated in agreeing to represent plaintiff on

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such terms. See Hearn v. Barnhart, 262 F. Supp.2d 1033, 1037 (N.D. Cal. 2003). Finally,

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counsel has submitted a detailed billing statement in support of the requested fee. (ECF No. 27-

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4.)

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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. See generally Acosta v. Berryhill, No. 1:14-CV3

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01422-BAM, 2018 WL 3472713, at *2 (E.D. Cal. July 17, 2018) (ordering an award of attorney’s

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fees pursuant to 406(b) in the amount of $21,642.90); Rodriguez v. Berryhill, No. 1:15-CV-

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00384-SKO, 2018 WL 1621162, at *3 (E.D. Cal. Apr. 4, 2018) (ordering an award of attorney’s

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fees pursuant to 42 U.S.C. § 406(b) in the amount of $11,100.00); Thomas v. Colvin, No. 1:11–

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cv–01291–SKO, 2015 WL 1529331, at *3 (E.D. Cal. Apr. 3, 2015) (ordering an award of

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attorney’s fees pursuant to section 406(b) in the amount of $44,603.50); Lautman v. Colvin, No.

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1:12-CV-01659-SKO, 2014 WL 3735341, at *3 (E.D. Cal. July 28, 2014) (ordering an award of

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attorney’s fees pursuant to section 406(b) in the amount of $12,703.50).

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An award of § 406(b) fees is, however, offset by any prior award of attorney’s fees

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

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at 796. Here, plaintiff’s counsel was previously awarded $10,265.77 in EAJA fees and the award

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under § 406(b) must be offset by that amount. (ECF No. 26.)

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s March 21, 2019 motion for attorney fees under 42 U.S.C. § 406(b), (ECF

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No. 27), is granted;

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2. Counsel for plaintiff is awarded $13,635.50 in attorney fees under § 406(b). The

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Commissioner is directed to pay the fee forthwith and remit to plaintiff the remainder any

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withheld benefits; and

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3. Upon receipt of the $13,635.50 in attorney fees pursuant to § 406(b), counsel shall

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reimburse plaintiff in the amount of $10,265.77 previously paid by the government under the

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EAJA.

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Dated: August 2, 2019

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DLB: am
DB\orders\orders.soc sec\clark851.406(b).ord

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