Embernate v. Commissioner of Social Security

Filing 27

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 5/2/2020 RECOMMENDING that plaintiff's 26 Motion for Attorney Fees be granted. Counsel for plaintiff be awarded the $9,064.75 in attorney fees. Motion referred to Judge John A. Mendez. Objections to F&R due within 30 days. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHERRELYN EMBERNATE,

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No. 2:17-cv-0040 JAM DB

Plaintiff,

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v.

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FINDINGS AND RECOMMENDATIONS

ANDREW SAUL, Commissioner of Social
Security1,

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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.2

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On April 26, 2018, the assigned District Judge entered an order granting plaintiff’s motion for

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summary judgment and remanding this matter for further proceedings. (ECF No. 19.)
On March 26, 2020, 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. 26.) Plaintiff and plaintiff’s counsel have entered into

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Andrew Saul became the Commissioner of the Social Security Administration on June 17, 2019.
See https://www.ssa.gov/agency/commissioner.html (last visited by the court on July 30, 2019).
Accordingly, Andrew Saul is substituted in as the defendant in this action. See 42 U.S.C. §
405(g) (referring to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding
the Office of the Commissioner shall, in his official capacity, be the proper defendant”).

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This matter has been referred to the undersigned pursuant to Local Rule 302(c)(15).
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a contingent-fee agreement. (ECF No. 26-3.) Pursuant to that agreement plaintiff’s counsel now

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seeks attorney’s fees in the amount of $9,064.75, which represents 25% of the retroactive

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disability benefits received by plaintiff on remand, for approximately 45 hours of attorney time

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expended on this matter. (ECF No. 26-2 at 4; ECF No. 26-5 at 2.) Defendant did not object to

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plaintiff’s motion.

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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.

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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
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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 undersigned will consider these factors in

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assessing whether the fee requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is

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reasonable.

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Here, the undersigned finds that there is no indication that a reduction of fees is warranted

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due to any substandard performance by counsel. Rather, plaintiff’s counsel is an experienced

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attorney who secured a successful result for plaintiff. There is also no evidence that plaintiff’s

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counsel engaged in any dilatory conduct resulting in excessive delay. The undersigned finds that

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the $9,064.75 fee, which represents 25% of the past-due benefits paid to plaintiff, is not excessive

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in relation to the benefits awarded. In making this determination, the undersigned recognizes the

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contingent fee nature of this case and counsel’s assumption of the risk of going uncompensated in

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agreeing to represent plaintiff on such terms. See Hearn v. Barnhart, 262 F. Supp.2d 1033, 1037

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(N.D. Cal. 2003). Finally, counsel has submitted a detailed billing statement in support of the

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requested fee. (ECF No. 26-5.)

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Accordingly, for the reasons stated above, the undersigned finds 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)).
An award of § 406(b) fees is normally offset by any prior award of attorney’s fees granted

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under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796.

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And plaintiff’s counsel was previously awarded $6,000 in EAJA fees. (ECF No. 23.) However,

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because of an error stemming from the Commissioner’s payment of benefits, $9,064.75—

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consisting of the $6,000 EAJA award and $3,064.75 contributed by plaintiff—has been held in

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trust by plaintiff’s counsel. (ECF No. 23.) Accordingly, no offset of EAJA fees is necessary.

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Accordingly, IT IS HEREBY RECOMMENDED that:

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1. Plaintiff’s March 26, 2020 motion for attorney fees under 42 U.S.C. § 406(b), (ECF

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No. 26), be granted; and

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2. Counsel for plaintiff be awarded the $9,064.75 in attorney fees under § 406(b) held in
trust.
These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty days after

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being served with these findings and recommendations, any party may file written objections with

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the court and serve a copy on all parties. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” Any reply to the objections shall be served

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and filed within fourteen days after service of the objections. The parties are advised that failure

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to file objections within the specified time may waive the right to appeal the District Court’s

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order. See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: May 2, 2020

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DLB:6
DB\orders\orders.soc sec\embernate0040.406(b).f&rs

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