Lor v. Commissioner of Social Security

Filing 36

ORDER signed by Magistrate Judge Deborah Barnes on 5/31/18, GRANTING plaintiff's 34 Motion for Attorney Fees. Counsel for plaintiff is awarded $20,000 in attorney fees under § 406(b). The Commissioner is directed to pay the fee forthwith and remit to plaintiff the remainder any withheld benefits. Upon receipt of the $20,000 in attorney fees pursuant to § 406(b), counsel shall reimburse plaintiff in the amount of $7,002.62 previously paid by the government under the EAJA. (Kastilahn, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DIA LOR,

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Plaintiff,

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No. 2:15-cv-1478 DB

v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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Plaintiff brought this action seeking judicial review of a final administrative decision

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denying an application for Supplemental Security Income under Title XVI of the Social Security

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Act. By order filed March 8, 2017, plaintiff’s motion for summary judgment was granted, the

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decision of the Commissioner was reversed, and the case was remanded for further proceedings.1

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(ECF No. 26.)
On March 1, 2018, counsel for plaintiff filed a motion for an award of attorney’s fees

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pursuant to 42 U.S.C. § 406(b). (ECF No. 34.) At the outset of the representation, plaintiff and

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plaintiff’s counsel entered into a contingent-fee agreement. (ECF No. 34-1.) Pursuant to that

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agreement plaintiff’s counsel now seeks attorney’s fees in the amount of $20,000, which

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Both parties have previously consented to Magistrate Judge jurisdiction in this action pursuant
to 28 U.S.C. § 636(c). (See ECF Nos. 10 & 12.)
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represents 22% of the retroactive disability benefits received by plaintiff on remand, for

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approximately 24.75 hours of attorney time expended on this matter.2 (ECF No. 34 at 5-6; ECF

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No. 34-2 at 3.) “Defendant has no objection to an award of § 406(b) fees,” provided plaintiff’s

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award is offset by the attorney’s fees previously awarded plaintiff’s counsel. (ECF No. 35. at 2.)

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Attorneys are entitled to fees for cases in which they have successfully represented social

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security claimants.

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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, 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)). Although an attorney fee

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award pursuant to 42 U.S.C. § 406(b) is not paid by the government, the Commissioner has

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standing to challenge the award. Craig v. Sec’y Dep’t of Health & Human Servs., 864 F.2d 324,

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328 (4th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807. The goal of fee

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awards under § 406(b) is to provide adequate incentive to attorneys for representing claimants

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while ensuring that the usually meager disability benefits received are not greatly depleted.

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Cotter v. Bowen, 879 F.2d 359, 365 (8th Cir. 1989).

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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 actually requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“[Section]

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406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b)

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instructs courts to review for reasonableness fees yielded by those agreements.”). “Within the 25

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percent boundary . . . the attorney for the successful claimant must show that the fee sought is

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Plaintiff’s counsel expended an additional 15.25 hours of attorney time in a second action
related to plaintiff’s application for benefits at issue in this action. (ECF No. 34 at 6-7.)
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reasonable for the services rendered.” Id. at 807. “[A] district court charged with determining a

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reasonable 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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The Supreme Court has identified five factors that may be considered in determining

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whether a fee award under a contingent-fee arrangement is unreasonable and therefore subject to

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reduction by the court: (1) the character of the representation; (2) the results achieved by the

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representative; (3) whether the attorney engaged in dilatory conduct in order to increase the

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accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the

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amount of time counsel spent on the case; and (5) the attorney’s record of hours worked and

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counsel’s regular hourly billing charge for noncontingent cases. Crawford, 586 F.3d at 1151-52

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(citing Gisbrecht, 535 U.S. at 808). Below, the court will consider these factors in assessing

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whether the fee requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable.

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Here, there is no indication that a reduction of fees is warranted due to any substandard

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performance by counsel. Rather, plaintiff’s counsel is an experienced attorney who secured a

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successful result for plaintiff. There is also no evidence that plaintiff’s counsel engaged in any

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dilatory conduct resulting in excessive delay. The court finds that the $20,000 fee, which

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represents only 22% of the past-due benefits paid to plaintiff, is not excessive in relation to the

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

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this case and counsel’s assumption of the risk of going uncompensated in agreeing to represent

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plaintiff on such terms. See Hearn v. Barnhart, 262 F. Supp.2d 1033, 1037 (N.D. Cal. 2003).

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Finally, counsel has submitted a detailed billing statement in support of the requested fee. (ECF

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No. 34 at 5-7.)

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Accordingly, for the reasons stated above, the court concludes that the fees sought by

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counsel pursuant to § 406(b) are reasonable. See generally Azevedo v. Commissioner of Social

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Security, No. 1:11-cv-1341 AWI SAB, 2013 WL 6086666, at *2 (E.D. Cal. Nov. 19, 2013)

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(granting petition pursuant to 406(b) for $17,893.75 in attorney’s fees); Coulter v. Commissioner

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of Social Security, No. 1:10-cv-1937 AWI JLT, 2013 WL 5969674, at *2 (E.D. Cal. Nov. 8,
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2013) (recommending award of $15,084.23 in attorney’s fees pursuant to 406(b)); Taylor v.

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Astrue, No. 1:06-cv-00957-SMS, 2011 WL 836740, at *2 (E.D. Cal. Mar. 4, 2011) (granting

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petition pursuant to 406(b) for $20,960 in attorneys’ fees); Jamieson v. Astrue, No. 1:09cv0490

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LJO DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011) (recommending award of $34,500 in

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attorney fees pursuant to 406(b)).

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An award of § 406(b) fees is, however, offset by any prior award of attorney’s fees

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granted under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S.

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at 796. Here, plaintiff’s counsel was previously awarded $7,002.62 in EAJA fees and the award

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under § 406(b) must be offset by that amount. (ECF No. 34 at 2.)

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s March 1, 2018 motion for attorney fees under 42 U.S.C. § 406(b), (ECF No.

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34), is granted;

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2. Counsel for plaintiff is awarded $20,000 in attorney fees under § 406(b). The

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Commissioner is directed to pay the fee forthwith and remit to plaintiff the remainder any

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withheld benefits; and

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3. Upon receipt of the $20,000 in attorney fees pursuant to § 406(b), counsel shall

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reimburse plaintiff in the amount of $7,002.62 previously paid by the government under the

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EAJA.

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Dated: May 31, 2018

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DLB:6
DB\orders\orders.soc sec\lor1478.406(b).ord

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