Block v. Commissioner of Social Security

Filing 23

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/5/2020 GRANTING 20 Motion for Attorney Fees, AWARDING plaintiff's counsel $15,000.00 in fees pursuant to 42 U.S.C. § 406(b). Upon receipt of the $15,000.00 award, counsel shall refund to plaintiff the sum of $3,008.00 previously awarded under the EAJA. (Coll, A)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

FOR THE EASTERN DISTRICT OF CALIFORNIA

9
10

ROBBIE L. BLOCK,

11

Plaintiff,

12
13
14

No. 2:16-cv-2230-EFB

v.

ORDER

ANDREW SAUL, Commissioner of Social
Security,
Defendant.

15
16

Pursuant to 42 U.S.C. § 406(b), counsel for plaintiff in the above-entitled action seeks an

17
18

award of attorney fees in the amount of $15,000.00, which is approximately 15 percent of past

19

benefits due to plaintiff. ECF No. 20. Plaintiff entered into a retainer agreement with his

20

attorney which provides that he would pay counsel 25 percent of any past-due benefits won as a

21

result of the appeal in this case. ECF No. 20-1. Counsel spent 13.4 professional hours on

22

plaintiff’s case, and a paralegal spent an additional 2.9 hours on the case. Id. at 20-4.
42 U.S.C. § 406(b)(1)(A) provides, in relevant part:

23
24

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.

25
26
27
28

/////
1

1

Rather than being paid by the government, fees under the Social Security Act are awarded

2

out of the claimant’s disability benefits. Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991),

3

receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 1991).

4

However, the 25 percent statutory maximum fee is not an automatic entitlement; the court also

5

must ensure that the requested fee is reasonable. Bisbrecht v. Barnhart, 535 U.S. 789, 808-09

6

(2002) (“We hold that § 406(b) does not displace contingent-fee agreements within the statutory

7

ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those

8

agreements.”). “Within the 25 percent boundary . . . the attorney for the successful claimant must

9

show that the fee sought is reasonable for the services rendered.” Id. at 807. A “court may

10

properly reduce the fee for substandard performance, delay, or benefits that are not in proportion

11

to the time spent on the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (en

12

banc).

13

After this court remanded for further proceedings, plaintiff was found disabled and

14

awarded past-due benefits. ECF No. 20-2. The Social Security Administration withheld

15

$22,355.00, which was 25 percent of plaintiff’s past due benefits, to pay his attorney. Id.

16

Plaintiff’s counsel’s request for $15,000.00, which is less than the statutory maximum, would

17

constitute an hourly rate of $1,119.40.1 Counsel did not delay these proceedings and her

18

representation of plaintiff was not substandard. Indeed, she successfully represented her client’s

19

interests before this court. Although the hourly rate exceeds the rate awarded in the majority of

20

Social Security cases, based on the risk of loss taken in representing plaintiff, counsel’s

21

experience in the field of Social Security law, and the results achieved in this case, the court finds

22

that fee request is reasonable. See De Vivo v. Berryhill, No. 1:15-cv-1332-EPG, 2018 WL

23

4262007 (E.D. Cal. Sept. 6, 2018) (awarding fees at effective hourly range of $1,116.26);

24

Jamieson v. Astrue, No. 1:09cv0490 LJO DLB, 2011 WL 587096 (E.D. Cal. Feb. 9, 2011)

25

(finding fee at effective hourly rate of $1,169.49 reasonable); Naddour v. Colvin, No.: 13-CV-

26

1407-BAS, 2016 WL 4248557 (S.D. Cal. Aug. 11, 2016) (awarding fee at effective hourly rate of

27
28

1

This amount does not account for the 2.9 hours of paralegal time.
2

1

$1,063); Kazanjian v. Astrue, No. 09 civ. 3678 (BMC), 2011 WL 2847439, at *1-2 (E.D.N.Y.

2

July 15, 2011) (finding that counsel “performed well, diligently, and with unusual efficiency,”

3

and awarding fee at hourly rate of $2,100).

4

Counsel concedes that the $15,000.00 award should be offset in the award for fees

5

previously granted under the Equal Access to Justice Act (“EAJA”). ECF No. 20 at 3; see ECF

6

No. 19. Counsel represents to the court that upon receipt of a fee award in the amount of

7

$15,000.00, she will refund plaintiff the sum of $3,008.00 previously awarded under the EAJA.

8

Id. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (holding that where attorney’s fees are

9

awarded under both EAJA and § 406(b), the attorney must refund the smaller of the two awards

10

to the plaintiff).

11

Accordingly, it is hereby ORDERED that:

12

1. Plaintiff’s counsel’s motion for attorney’s fees (ECF No. 20) is granted;

13

2. Plaintiff’s counsel is awarded $15,000.00 in fees pursuant to 42 U.S.C. § 406(b); and

14

3. Upon receipt of the $15,000.00 award, counsel shall refund to plaintiff the sum of

15

$3,008.00 previously awarded under the EAJA.

16

DATED: October 5, 2020.

17
18
19
20
21
22
23
24
25
26
27
28
3