Setu v. Commissioner of Social Security
Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 10/5/2020 GRANTING 22 Motion for Attorney Fees, AWARDING plaintiff's counsel $11,070.94 in fees pursuant to 42 U.S.C. § 406(b). Upon receipt of the $11,070.94 award, counsel shall refund to plaintiff the sum of $4,590.28 previously awarded under the EAJA. (Coll, A)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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ROSE SETU,
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Plaintiff,
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No. 2:15-cv-597-EFB
v.
ORDER
ANDREW SAUL, Commissioner of Social
Security,
Defendant.
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Pursuant to 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 $11,070.94, which amounts to a total request for fees
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equaling 25 percent of past benefits due to plaintiff.1 ECF No. 22. Plaintiff entered into a
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retainer agreement with his attorney which provides that she would pay counsel 25 percent of any
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past-due benefits won as a result of the appeal in this case. ECF No. 22-3. Plaintiff’s two
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attorneys, Shellie Lott and Chantal Harrington, spent 26.1 professional hours on plaintiff’s case.
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ECF No. 24-1.
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Counsel also petitioned the agency for $6,000 in fees under 42 U.S.C. § 406(a) for work
performed at the administrative level. ECF No. 22 at 1. Thus, counsel seeks a total award of
$17,070.94, which is 25 percent of the $68,283.74 past benefits due to plaintiff.
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42 U.S.C. § 406(b)(1)(A) provides, in relevant part:
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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.
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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
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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 $68,283.74. ECF No. 22-2 at 1. Counsel’s request
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for of $11,070.94, which would result in a total award equal to the statutory maximum, would
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constitute an hourly rate of $424.17. Counsel did not delay these proceedings, and her
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representation of plaintiff was not substandard. Indeed, they successfully represented their
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client’s interests before this court. Based on the risk of loss taken in representing plaintiff,
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counsel’s experience in the field of Social Security law, and the results achieved in this case, the
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court finds that fee request is reasonable. See De Vivo v. Berryhill, No. 1:15-cv-1332-EPG, 2018
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WL 4262007 (E.D. Cal. Sept. 6, 2018) (awarding fees at effective hourly range of $1,116.26);
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Jamieson v. Astrue, No. 1:09cv0490 LJO DLB, 2011 WL 587096 (E.D. Cal. Feb. 9, 2011)
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(finding fee at effective hourly rate of $1,169.49 reasonable); Naddour v. Colvin, No.: 13-CV2
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1407-BAS, 2016 WL 4248557 (S.D. Cal. Aug. 11, 2016) (awarding fee at effective hourly rate of
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$1,063); Kazanjian v. Astrue, No. 09 civ. 3678 (BMC), 2011 WL 2847439, at *1-2 (E.D.N.Y.
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July 15, 2011) (finding that counsel “performed well, diligently, and with unusual efficiency,”
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and awarding fee at hourly rate of $2,100).
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Counsel concedes that the $11,070.94 award should be offset by the fees previously
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awarded under the under the Equal Access to Justice Act (“EAJA”). ECF No. 22-1 at 2; see ECF
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No. 21. Counsel represents to the court that upon receipt of a fee award in the amount of
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$11,070.94, she will immediately refund plaintiff the sum of $4,590.28 previously awarded under
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the EAJA. ECF No. 22-1 at 2. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (holding
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that where attorney’s fees are awarded under both EAJA and § 406(b), the attorney must refund
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the smaller of the two awards to the plaintiff).
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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. 22) is granted;
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2. Plaintiff’s counsel is awarded $11,070.94 in fees pursuant to 42 U.S.C. § 406(b); and
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3. Upon receipt of the $11,070.94 award, counsel shall refund to plaintiff the sum of
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$4,590.28 previously awarded under the EAJA.
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DATED: October 5, 2020.
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