Anderson v. Commissioner of Social Security

Filing 33

ORDER signed by Magistrate Judge Allison Claire on 09/26/17 GRANTING plaintiff's 30 Motion for Attorney Fees. Counsel for plaintiff is awarded $4,974.10 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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 MARY FRANCES ANDERSON, 12 13 14 15 16 No. 2:15-cv-1954 AC Plaintiff, v. ORDER NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 17 18 Plaintiff sought judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying her application for a period of disability and disability insurance 20 benefits (“DIB”) benefits under Title II of the Social Security Act (“the Act”). On March 2, 21 2017, the court granted plaintiff’s motion for summary judgment, denied the Commissioner’s 22 cross-motion for summary judgment, and remanded the action to the Commissioner with 23 instructions to award benefits. ECF No. 22. 24 Now pending before the court is plaintiff’s September 5, 2017 motion for an award of 25 attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 30. Defendant does not assent or 26 oppose the motion. ECF No. 31. For the reasons set forth below, the motion will be granted. 27 28 I. REASONABLENESS OF FEE REQUEST At the outset of the representation, plaintiff and her counsel entered into a contingent-fee 1 1 agreement. ECF No. 30-1. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s 2 fees in the amount of $4,974.60, which he asserts represents 25% of the $54,884.00 in retroactive 3 disability benefits received by plaintiff on remand ($13,721.00) less $8,746.40 already awarded in 4 Equal Justice Act fees, for 73.8 hours of attorney time expended on this matter. ECF Nos. 30 at 5 4-5. The court notes that $8,746.90 was actually awarded in EAJA fees. ECF No. 29. 6 7 8 9 10 11 12 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. 13 42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42 14 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing 15 party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) 16 (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The goal of fee awards under 17 § 406(b) is “‘to protect claimants against “inordinately large fees” and also to ensure that 18 attorneys representing successful claimants would not risk “nonpayment of [appropriate] fees.”’” 19 Parrish v. Comm'r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting Gisbrecht, 20 535 U.S. at 805). 21 The 25% statutory maximum fee is not an automatic entitlement, and the court must 22 ensure that the fee requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“406(b) does not 23 displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts 24 to review for reasonableness fees yielded by those agreements”). “Within the 25 percent 25 boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable 26 for the services rendered.” Id. at 807. “[A] district court charged with determining a reasonable 27 fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee 28 arrangements,’ ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 2 1 Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793, 808). 2 In determining whether the requested fee is reasonable, the court considers “‘the character 3 of the representation and the results achieved by the representative.’” Crawford, 586 F.3d at 1151 4 (quoting Gisbrecht, 535 U.S. at 808). In determining whether a reduction in the fee is warranted, 5 the court considers whether the attorney provided “substandard representation or delayed the 6 case,” or obtained “benefits that are not in proportion to the time spent on the case.” Id. Finally, 7 the court considers the attorney’s record of hours worked and counsel’s regular hourly billing 8 charge for non-contingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at 9 808); see also, E.D. Cal. R. 293(c)(1) (in fixing attorney’s fees the court considers “the time and 10 labor required”). Below, the court will consider these factors in assessing whether the fee 11 requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable. 12 Here, plaintiff’s counsel is an experienced attorney who secured a successful result for 13 plaintiff. See Declaration of Robert C. Weems (ECF No. 30 at 9). There is no indication that a 14 reduction of fees is warranted due to any substandard performance by counsel. There is also no 15 evidence that plaintiff’s counsel engaged in any dilatory conduct resulting in excessive delay. 16 The court finds that the $4,974.10, which represents 25% of the $54,884.00 in past-due benefits 17 paid to plaintiff less the $8,746.90 already paid in EAJA fees, is not excessive in relation to the 18 benefits awarded. In making this determination, the court recognizes the contingent fee nature of 19 this case and counsel’s assumption of the risk of going uncompensated in agreeing to represent 20 plaintiff on such terms. See Crawford, 586 F.3d at 1152 (“[t]he attorneys assumed significant 21 risk in accepting these cases, including the risk that no benefits would be awarded or that there 22 would be a long court or administrative delay in resolving the cases”). Finally, counsel has 23 submitted a detailed billing statement in support of the requested fee. ECF No. 30-4. 24 Accordingly, for the reasons stated above, the court concludes that the fees sought by 25 counsel pursuant to § 406(b), as corrected to $4,974.10 from $4,974.60, are reasonable. 26 //// 27 //// 28 //// 3 1 II. CONCLUSION 2 Accordingly, IT IS HEREBY ORDERED that: 3 1. Plaintiff’s Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 30), is 4 GRANTED; and 5 2. Counsel for plaintiff is awarded $4,974.10 in attorney’s fees under § 406(b); the 6 Commissioner shall certify that amount to be paid to counsel from the funds previously withheld 7 for the payment of such fees (see ECF No. 30-2 at 3). 8 DATED: September 26, 2017 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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