Overbeck v. Commissioner of Social Security
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/08/17 GRANTING 22 Motion for Attorney Fees. Plaintiff's counsel is awarded $12,385.50 in attorney fees pursuant to 28 U.S.C. § 406. (Mena-Sanchez, L)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JEFFEREY OVERBECK,
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No. 2:14-cv-02645 CKD
Plaintiff,
v.
ORDER
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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Based on 42 U.S.C. § 406(b), counsel for plaintiff in the above-entitled action seeks an
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award of attorney fees in the amount of $12,385.50 for 31.45 hours of professional time devoted
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to the representation of plaintiff before this court. This amount contemplates no offset for fees
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previously awarded under EAJA, as plaintiff did not seek EAJA fees in this case. Defendant has
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filed a response analyzing the request and determining that plaintiff’s counsel’s calculation
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appears to be correct, though defendant takes no position on the reasonableness of the request.
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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.
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Rather than being paid by the government, fees under the Social Security Act are awarded out of
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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. 2001).
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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. Gisbrecht 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.
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Counsel seeks fees for 31.45 hours. Based on the quality of counsel’s representation and
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the results achieved in this case, the undersigned finds the amount of hours expended to be
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reasonable. The hourly rate of $393.82 is also reasonable. Accordingly, the undersigned will
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award the amount of attorney fees requested.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Plaintiff’s motion for attorney fees (ECF No. 22) is granted; and
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2. Plaintiff’s counsel is awarded $12,385.50 in attorney fees pursuant to 28 U.S.C. § 406.
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Dated: December 8, 2017
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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2/overbeck2645.fee-406(a)
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