Demchuk v. Commissioner of Social Security

Filing 34

ORDER signed by Magistrate Judge Edmund F. Brennan on 2/5/2020 GRANTING 32 Motion for Attorney Fees and AWARDING plaintiff's counsel $6,000 in fees pursuant to 42 U.S.C. § 406(b). (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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GALINA DEMCHUK,

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Plaintiff,

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No. 2:16-cv-977-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 $10,000, which is approximately 22 percent of past

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benefits due to plaintiff.1 ECF No. 32. Plaintiff entered into a retainer agreement with her

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attorney which provides that she would pay counsel up to 25 percent of any past-due benefits won

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as a result of the appeal in this case. ECF No. 32-1 at 5-6. Counsel spent 21.5 professional hours

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on plaintiff’s case. ECF No. 32 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. 33.
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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 plaintiff’s case for further proceedings, plaintiff was found

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disabled and awarded past-due benefits in the amount of $44,626.08. ECF No. 32-1 at 1-4.

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Plaintiff’s counsel’s request for $10,000, which is below the statutory maximum, would constitute

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an hourly rate of $465.12. Based on the risk of loss taken in representing plaintiff, the quality of

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

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

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2003) (discussing cases where courts granted fees based on hourly rates from $187.55 to $694.44,

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

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2009 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 number of hours expended to be reasonable.

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Counsel concedes that the $10,000 award should be offset in the amount of $4,000 for

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fees previously awarded under the Equal Access to Justice Act (“EAJA”). ECF No. 32 at 5.

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Accordingly, counsel will be granted $6,000 pursuant to 42 U.S.C. § 406(b). 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. 32) is granted; and

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

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DATED: February 5, 2020.

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