De La Paz v. Commissioner of Social Security

Filing 29

ORDER signed by Magistrate Judge Allison Claire on 12/20/18 GRANTING 26 Motion for Attorney Fees; Counsel for plaintiff is awarded $4,268.10 in attorney's fees; the Commissioner shall certify that amount to be paid to counsel from the funds previously withheld for the payment of such fees. (Benson, A.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ENRICO RAMON DE LA PAZ,

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Plaintiff,

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No. 2:15-cv-00685 AC

v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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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 supplemental security income benefits. ECF No.

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1. On September 16, 2016, the court granted plaintiff’s motion for summary judgment, denied

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the Commissioner’s cross-motion for summary judgment, and remanded the action to the

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Commissioner for further proceedings. ECF No. 20.
Now pending before the court is plaintiff’s December 12, 2018 motion for an award of

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attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 26. On December 20, 2018, defendant

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filed a statement of non-opposition asserting that defendant “takes no position on the

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reasonableness” of the fee request. ECF No. 28 at 5. For the reasons set forth below, the motion

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will be granted.

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I. REASONABLENESS OF FEE REQUEST

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At the outset of the representation, plaintiff and his counsel entered into a contingent-fee

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agreement. ECF No. 26-3. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s

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fees in the amount of $4,268.01, which represents 25% of the $39,872.06 in retroactive disability

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benefits received by plaintiff on remand, less $5,700.00 in already received EAJA fees, for 26.3

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hours of attorney time expended on this matter in 2015 and 2.5 attorney hours in 2016. ECF

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Nos. 26-1, 26-4.

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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 Declaration of Shellie Lott (“Lott Decl.”) (ECF No. 26-1). There is no indication

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that a reduction of fees is warranted due to any substandard performance by counsel. There is

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also no evidence that plaintiff’s counsel engaged in any dilatory conduct resulting in excessive

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delay. The court finds that the amount requested is not excessive in relation to the benefits

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awarded. In making this determination, the court recognizes the contingent fee nature of this case

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and counsel’s assumption of the risk of going uncompensated in agreeing to represent plaintiff on

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such terms. See Crawford, 586 F.3d at 1152 (“[t]he attorneys assumed significant risk in

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accepting these cases, including the risk that no benefits would be awarded or that there would be

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a long court or administrative delay in resolving the cases”). Finally, counsel has submitted a

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detailed billing statement in support of the requested fee. ECF No. 26-5.

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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.
II. OFFSET FOR EAJA FEES
An award of § 406(b) fees must be offset by any prior award of attorney’s fees granted
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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 accounted for the prior EAJA award of $5,700.00 in her fee request.

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See ECF No. 26-1 at 2.

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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. 26), is

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GRANTED;

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2. Counsel for plaintiff is awarded $4,268.10 in attorney’s fees under § 406(b); the

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Commissioner shall certify that amount to be paid to counsel from the funds previously withheld

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for the payment of such fees.

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DATED: December 20, 2018

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