Bradley v. Acting Commissioner of Social Security

Filing 28

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/25/2019 GRANTING 25 Motion for Attorney Fees. Plaintiff's counsel is awarded $6,000 in fees. Upon receipt of the $6,000 award, counsel shall refund to plaintiff the sum of $3,147.78 previously awarded under the EAJA. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHN BRADLEY,

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Plaintiff,

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No. 2:15-cv-1026-EFB

v.

ORDER

NANCY A. BERRYHILL, Acting
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 $6,000, which is 5.6 percent of past benefits due to

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plaintiff.1 ECF No. 25. Plaintiff entered into a retainer agreement with his attorney which

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provides that he would pay counsel up to 25 percent of any past-due benefits won as a result of

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the appeal in this case. ECF No. 25-3. Counsel spent 17.25 professional hours on plaintiff’s

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case. ECF No. 25 at 4-5.

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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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The Commissioner does not oppose counsel’s request. ECF No. 27.
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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 $107,677. ECF No. 25-1. Plaintiff’s counsel’s

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request for $6,000, which is well below the statutory maximum, would constitute an hourly rate

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of $347.83. Based on the risk of loss taken in representing plaintiff, the quality of counsel’s

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representation, and counsel’s experience in the field of Social Security law, the court finds that

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rate to be reasonable. See Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003)

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(discussing cases where courts granted fees based on hourly rates from $187.55 to $694.44, and

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awarding effective hourly rate of $450.00); Mondello v. Astrue, No. Civ S-04-973 DAD, 2009

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WL 636542, at *2 (E.D. Cal. March 11, 2009) (awarding fees that represented a rate of

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approximately $801.00 per hour). Further, given the result achieved in this case, the court finds

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the amount of hours expended to be reasonable.

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Counsel concedes that the $6,000 award should be offset in the amount of $3,147.78 for

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fees previously awarded under the Equal Access to Justice Act (“EAJA”). ECF No. 25 at 2.

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Counsel provides that upon receipt of a fee award in the amount of $6,000, he will refund the

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plaintiff the sum of $3,147.78 previously awarded under the EAJA. Id. at 8. See Gisbrecht v.

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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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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s counsel’s motion for attorney’s fees (ECF No. 25) is granted;

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2. Plaintiff’s counsel is awarded $6,000 in fees pursuant to 42 U.S.C. § 406(b); and

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3. Upon receipt of the $6,000 award, counsel shall refund to plaintiff the sum of

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$3,147.78 previously awarded under the EAJA.

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DATED: March 25, 2019.

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