Moon v. Commisioner of Social Security
Filing
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ORDER signed by Magistrate Judge Allison Claire on 7/17/2017 GRANTING 28 Plaintiff's Motion for Attorney Fees under 42:406(b); Counsel for plaintiff is awarded $15,844.00 in attorney's fees under Sec 406(b); and Counsel for plaintiff is directed to remit to plaintiff the amount of $3,805.65 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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ANDY ALLEN MOON,
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No. 2:14-cv-00861 AC
Plaintiff,
v.
ORDER
NANCY A. BERRYHILL, 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 his 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 18, 2016
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the parties stipulated to a voluntary reversal and remand. ECF No. 20.
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Now pending before the court is plaintiff’s May 12, 2016 motion for an award of
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attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 28. On June 8, 2016, defendant filed a
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response asserting that defendant “is not in a position to either assent or object” to the fee request.
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ECF No. 30. Plaintiff’s counsel filed documentation that plaintiff has been served with the
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request for fees. ECF Nos. 31, 33. 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. 28-1. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s
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fees in the amount of $15,844.00, which represents 25% of the $63,376.00in retroactive disability
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benefits received by plaintiff on remand for 27.7 hours of attorney time expended on this matter.
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ECF Nos. 28 ¶¶ 3.1-3.4, 28-4.
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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 ECF No. 38 at ¶ 3.4. There is no indication that a reduction of fees is warranted
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due to any substandard performance by counsel. There is also no evidence that plaintiff’s counsel
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engaged in any dilatory conduct resulting in excessive delay. The court finds that the $15,844.00
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fee, which represents 25% of the $63,376.00 in past-due benefits paid to plaintiff, is not excessive
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in relation to the benefits awarded. In making this determination, the court recognizes the
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contingent fee nature of this case and counsel’s assumption of the risk of going uncompensated in
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agreeing to represent plaintiff on such terms. See Crawford, 586 F.3d at 1152 (“[t]he attorneys
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assumed significant risk in accepting these cases, including the risk that no benefits would be
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awarded or that there would be a long court or administrative delay in resolving the cases”).
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Finally, counsel has submitted a detailed billing statement in support of the requested fee. ECF
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No. 28-4.
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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.
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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
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 $3,805.65 in EAJA fees. See ECF No. 27.
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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. 28), is
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GRANTED;
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2. Counsel for plaintiff is awarded $15,844.00 in attorney’s fees under § 406(b); and
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3. Counsel for plaintiff is directed to remit to plaintiff the amount of $3,805.65 for EAJA
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fees previously paid to counsel by the Commissioner.
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DATED: July 17, 2017
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