Rodriguez v. Commissioner of Social Security

Filing 24

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/27/2017 GRANTING 18 Motion for Attorney Fees and GRANTING 21 Motion to redact plaintiff's birth date. Plaintiff is AWARDED $34,462.09 in Attorneys fees. The Clerk is DIRECTED to replace 12 Order with a copy of the order omitting plaintiff's birth date. (Donati, J)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MARIANNE RENEE CABALLERO
RODRIGUEZ,
Plaintiff,

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ORDER
v.

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No. 2:14-cv-1030-EFB

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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Plaintiff’s counsel moves for an award of attorney’s fees pursuant to 42 U.S.C. § 406(b)

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(ECF No. 18), and plaintiff moves to redact her birth date from the order granting her motion for

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summary judgment (ECF No. 21). For the reasons discussed below, the motions are granted.

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I.

Attorney’s Fees
Pursuant to 42 U.S.C. § 406(b), counsel for plaintiff seeks an award of attorney’s fees in

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the amount of $39,973.45, which is 25 percent of past benefits due to plaintiff.1 ECF No. 18.

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Plaintiff entered into a retainer agreement with her attorney which states that she would pay

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counsel 25 percent of any past-due benefits won as a result of the appeal in this case. ECF No.

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19-3. Counsel spent 29 professional hours on plaintiff’s case. ECF No. 18-4.

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Defendant takes no position in the reasonableness of counsel’s request. See ECF No. 20

at 3.
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42 U.S.C. § 406(b)(1)(A) provides, in relevant part:
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.
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 banc)
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After this court remanded for further proceedings, plaintiff was found disabled and
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awarded past-due benefits in the amount of $159,893.80. ECF No. 18-2. Counsel’s request for
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$39,973.45, which is 25 percent of the past-due benefits, would constitute an hourly rate of
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$1,378.39. 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.
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Although the hourly rate exceeds the rate awarded in the majority of social security cases, based
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on the risk of loss taken in representing plaintiff, the quality of counsel’s representation, counsel’s
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experience in the field of Social Security law, and the results achieved in this case, the court finds
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that fee request is reasonable. See Jamieson v. Astrue, No. 1:09cv0490 LJO DLB, 2011 WL
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587096 (E.D. Cal. Feb. 9, 2011) (finding fee at effective hourly rate of $1,169.49 reasonable);
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Smith v. Astrue, No. CIV S-06-2373 DAD, 2011WL 5024462, at *2 (E.D. Cal. Oct. 20, 2011)
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(awarding fee at effective hourly rate of $1,015); Naddour v. Colvin, No.: 13-CV-1407-BAS,
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2016 WL 4248557 (S.D. Cal. Aug. 11, 2016) (awarding fee at effective hourly rate of $1,063);

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Kazanjian v. Astrue, No. 09 civ. 3678 (BMC), 2011 WL 2847439, at *1-2 (E.D.N.Y. July 15,

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2011) (finding that counsel “performed well, diligently, and with unusual efficiency,” and

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awarding fee at hourly rate of $2,100).

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Counsel concedes that the $39,973.45 award should be offset in the amount of $5,511.36

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for fees previously awarded under the Equal Access to Justice Act (“EAJA”). ECF No. 18-1 at 1.

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Accordingly, counsel will be granted $34,462.09 pursuant to 42 U.S.C. § 406(b). See Gisbrecht

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v. 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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II.

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Motion to Redact
Plaintiff moves to redact her birthdate from the court’s order granting her motion for

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summary judgment. ECF No. 21. The Commissioner does not oppose plaintiff’s motion. ECF

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No. 23.

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Under Local Rule 140(a)(iv), court documents shall use the year of birth in place of the

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specific birth date, unless the court orders otherwise. Accordingly, plaintiff’s motion to redact

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her birth date is granted.

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III.

Conclusion

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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. 32) is granted;

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2. Plaintiff’s counsel is awarded $34,462.09 in fees pursuant to 42 U.S.C. § 406(b);

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3. Plaintiff’s motion to redact her birth date (ECF No. 21) is granted; and

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4. The Clerk of the Court is directed to replace ECF No. 12 with a copy of the order

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omitting plaintiff’s birth date.

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DATED: November 27, 2017.

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