Mitchell v. Commissioner of Social Security
Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 4/10/2020 GRANTING 28 plaintiff's Motion for Attorney Fees. Plaintiff's counsel is AWARDED $7,287.00 in fees pursuant to 42 U.S.C. § 406(b). (Kastilahn, A)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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CHARLES V. MITCHELL,
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Plaintiff,
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No. 2:16-cv-970-EFB
v.
ORDER
ANDREW SAUL, 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 $10,787, which is 25 percent of past benefits due to
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plaintiff. ECF No. 28. Plaintiff entered into a retainer agreement with his attorney which
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provides that he would pay counsel 25 percent of any past-due benefits won as a result of the
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appeal in this case. ECF No. 28-1. Counsel spent 22.3 professional hours on plaintiff’s case.
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ECF No. 28-4.
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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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 $43,148.06. ECF No. 28-3. Plaintiff’s counsel’s
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request for $10,787.00, which is the statutory maximum, would constitute an hourly rate of
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$483.72. Counsel did not delay these procedures and his representation of plaintiff was not
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substandard. Rather, he diligently and successfully represented his client’s interests before this
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court. Based on the risk of loss taken in representing plaintiff, counsel’s experience in the field of
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Social Security law, and the results achieved in this case, the court finds that fee request is
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reasonable. See De Vivo v. Berryhill, No. 1:15-cv-1332-EPG, 2018 WL 4262007 (E.D. Cal. Sept.
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6, 2018) (awarding fees at effective hourly range of $1,116.26); Jamieson v. Astrue, No.
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1:09cv0490 LJO DLB, 2011 WL 587096 (E.D. Cal. Feb. 9, 2011) (finding fee at effective hourly
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rate of $1,169.49 reasonable); Naddour v. Colvin, No.: 13-CV-1407-BAS, 2016 WL 4248557
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(S.D. Cal. Aug. 11, 2016) (awarding fee at effective hourly rate of $1,063); Kazanjian v. Astrue,
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No. 09 civ. 3678 (BMC), 2011 WL 2847439, at *1-2 (E.D.N.Y. July 15, 2011) (finding that
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counsel “performed well, diligently, and with unusual efficiency,” and awarding fee at hourly rate
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of $2,100).
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The $10,787 award should be offset in the amount of $3,500.00 for fees previously
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awarded under the Equal Access to Justice Act (“EAJA”). See ECF No. 27. Accordingly,
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counsel will be granted $7,287.00 pursuant to 42 U.S.C. § 406(b). See Gisbrecht v. Barnhart,
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535 U.S. 789, 796 (2002) (holding that where attorney’s fees are awarded under both EAJA and
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§ 406(b), the attorney must refund he 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. 28) is granted; and
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2. Plaintiff’s counsel is awarded $7,287.00 in fees pursuant to 42 U.S.C. § 406(b).
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DATED: April 10, 2020.
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