Lara v. Commissioner of Social Security

Filing 28

ORDER signed by Magistrate Judge Deborah Barnes on 6/8/2018 GRANTING 24 Motion for Attorney Fees. Counsel for plaintiff is awarded $13,896.25 in attorney fees under § 406(b). Upon receipt of the $13,896.25 in attorney fees pursuant to § 406(b), counsel shall reimburse plaintiff in the amount of $8,946.43 previously paid by the government 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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BRUNILDA LARA,

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No. 2:16-cv-0034-DB

Plaintiff,

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v.

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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 Disability Insurance Benefits under Title II of the Social Security Act

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and for Supplemental Security Income under Title XVI of the Act. By order filed March 30,

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2017, plaintiff’s motion for summary judgment was granted, the decision of the Commissioner

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was reversed, and the case was remanded for further proceedings.1 (ECF No. 19.)
On April 12, 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. 24.) At the outset of the representation, plaintiff and

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plaintiff’s counsel entered into a contingent-fee agreement. (ECF No. 25-1.) Pursuant to that

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agreement plaintiff’s counsel now seeks attorney’s fees in the amount of $13,896.25, 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. 7 & 8.)
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represents 25% of the retroactive disability benefits received by plaintiff on remand, for

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approximately 58.7 hours of attorney time expended on this matter. (ECF No. 25-3 at 5; ECF No.

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25-4 at 3.) “Defendant has no objection to an award of § 406(b) fees,” provided plaintiff’s award

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is offset by the attorney’s fees previously awarded plaintiff’s counsel. (ECF No. 26 at 2.)

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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.
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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reasonable for the services rendered.” Id. at 807. “[A] district court charged with determining a
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, with respect to the first two factors noted above, there is no indication that a

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reduction of fees is warranted due to the character of the representation or the results achieved.

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Rather, plaintiff’s counsel is an experienced attorney who secured a successful result for plaintiff.

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As to the third factor, there is no evidence that plaintiff’s counsel engaged in any dilatory conduct

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resulting in excessive delay. The court finds that the $13,896.25 fee, which represents 25% of the

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past-due benefits paid to plaintiff, is not large in comparison to the amount of time counsel spent

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

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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, with respect to the final factor, counsel has submitted a detailed record of hours worked.

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(ECF No. 25-4 at 3.)

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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 $8,946.43 in EAJA fees and the award

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under § 406(b) must be offset by that amount. (ECF No. 23.)

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Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff’s April 12, 2018 motion for attorney fees under 42 U.S.C. § 406(b), (ECF No.

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2. Counsel for plaintiff is awarded $13,896.25 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 $13,896.25 in attorney fees pursuant to § 406(b), counsel shall

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reimburse plaintiff in the amount of $8,946.43 previously paid by the government under the

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EAJA.

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Dated: June 8, 2018

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DLB: E(rx)
DB\orders\orders.soc sec\lara0034.406(b).edit.ord

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