Overbeck v. Commissioner of Social Security

Filing 25

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFEREY OVERBECK, 12 13 14 15 16 No. 2:14-cv-02645 CKD Plaintiff, v. ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 17 18 Based on 42 U.S.C. § 406(b), counsel for plaintiff in the above-entitled action seeks an 19 award of attorney fees in the amount of $12,385.50 for 31.45 hours of professional time devoted 20 to the representation of plaintiff before this court. This amount contemplates no offset for fees 21 previously awarded under EAJA, as plaintiff did not seek EAJA fees in this case. Defendant has 22 filed a response analyzing the request and determining that plaintiff’s counsel’s calculation 23 appears to be correct, though defendant takes no position on the reasonableness of the request. 24 25 26 27 28 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. 1 1 Rather than being paid by the government, fees under the Social Security Act are awarded out of 2 the claimant’s disability benefits. Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991), 3 receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 2001). 4 However, the 25 percent statutory maximum fee is not an automatic entitlement; the court also 5 must ensure that the requested fee is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 6 (2002) (“We hold that § 406(b) does not displace contingent-fee agreements within the statutory 7 ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those 8 agreements.”). “Within the 25 percent boundary ... the attorney for the successful claimant must 9 show that the fee sought is reasonable for the services rendered.” Id. at 807. 10 Counsel seeks fees for 31.45 hours. Based on the quality of counsel’s representation and 11 the results achieved in this case, the undersigned finds the amount of hours expended to be 12 reasonable. The hourly rate of $393.82 is also reasonable. Accordingly, the undersigned will 13 award the amount of attorney fees requested. 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Plaintiff’s motion for attorney fees (ECF No. 22) is granted; and 16 2. Plaintiff’s counsel is awarded $12,385.50 in attorney fees pursuant to 28 U.S.C. § 406. 17 Dated: December 8, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 2/overbeck2645.fee-406(a) 24 25 26 27 28 2

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