Morrow v. Commissioner of Social Security

Filing 31

ORDER signed by Magistrate Judge Allison Claire on 9/6/19 GRANTING 28 Motion for Attorney Fees. (Kaminski, H)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

CARMEN ANN MORROW,

12

Plaintiff,

13
14
15

No. 2:17-cv-0250 AC

v.

ORDER

ANDREW SAUL, Commissioner of Social
Security,

16

Defendant.

17
Plaintiff sought judicial review of a final decision of the Commissioner of Social Security

18
19

(“Commissioner”), denying his application for a period of disability and disability insurance

20

benefits (“DIB”) benefits under Title II and supplemental security income (SSI) under Title XVI

21

of the Social Security Act (“the Act”). On October 31, 2017, the parties stipulated to remand, and

22

an order and judgment was entered. ECF Nos. 22, 23.
Now pending before the court is plaintiff’s August 21, 2019 amended motion for an award

23
24

of attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 28. On September 12, 2019,

25

defendant filed a response taking “no position on the reasonableness of the request.” ECF No. 30

26

at 4. For the reasons set forth below, the motion will be granted.

27

////

28

////
1

1

I. REASONABLENESS OF FEE REQUEST

2

At the outset of the representation, plaintiff and his counsel entered into a contingent-fee

3

agreement. ECF No. 29-1. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s

4

fees in the amount of $10,926.00, which represents 25% of the retroactive disability benefits

5

received by plaintiff on remand, for 10.25 hours of attorney time expended on this matter. ECF

6

Nos. 28-1, 28 at 4.

7
8
9
10
11
12
13

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.

14

42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42

15

U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing

16

party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009)

17

(en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The goal of fee awards under

18

§ 406(b) is “‘to protect claimants against “inordinately large fees” and also to ensure that

19

attorneys representing successful claimants would not risk “nonpayment of [appropriate] fees.”’”

20

Parrish v. Comm'r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting Gisbrecht,

21

535 U.S. at 805).

22

The 25% statutory maximum fee is not an automatic entitlement, and the court must

23

ensure that the fee requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“406(b) does not

24

displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts

25

to review for reasonableness fees yielded by those agreements”). “Within the 25 percent

26

boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable

27

for the services rendered.” Id. at 807. “[A] district court charged with determining a reasonable

28

fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee
2

1

arrangements,’ ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’”

2

Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793, 808).

3

In determining whether the requested fee is reasonable, the court considers “‘the character

4

of the representation and the results achieved by the representative.’” Crawford, 586 F.3d at 1151

5

(quoting Gisbrecht, 535 U.S. at 808). In determining whether a reduction in the fee is warranted,

6

the court considers whether the attorney provided “substandard representation or delayed the

7

case,” or obtained “benefits that are not in proportion to the time spent on the case.” Id. Finally,

8

the court considers the attorney’s record of hours worked and counsel’s regular hourly billing

9

charge for non-contingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at

10

808); see also, E.D. Cal. R. 293(c)(1) (in fixing attorney’s fees the court considers “the time and

11

labor required”). Below, the court will consider these factors in assessing whether the fee

12

requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable.

13

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

14

plaintiff. See Declaration of Jesse S. Kaplan (“Kaplan Decl.”) (ECF No. 28 at 6-7). There is no

15

indication that a reduction of fees is warranted due to any substandard performance by counsel.

16

There is also no evidence that plaintiff’s counsel engaged in any dilatory conduct resulting in

17

excessive delay. The court finds that the $10,962.00 fee, which represents 25% of the past-due

18

benefits paid to plaintiff, is not excessive in relation to the benefits awarded. In making this

19

determination, the court recognizes the contingent fee nature of this case and counsel’s

20

assumption of the risk of going uncompensated in agreeing to represent plaintiff on such terms.

21

See Crawford, 586 F.3d at 1152 (“[t]he attorneys assumed significant risk in accepting these

22

cases, including the risk that no benefits would be awarded or that there would be a long court or

23

administrative delay in resolving the cases”). Finally, counsel has submitted a detailed billing

24

statement in support of the requested fee. ECF No. 28 at 4. Defendant has not opposed the

25

reasonableness of the award.

26
27

Accordingly, for the reasons stated above, the court concludes that the fees sought by
counsel pursuant to § 406(b) are reasonable.

28
3

1
2

II. OFFSET FOR EAJA FEES
An award of § 406(b) fees must be offset by any prior award of attorney’s fees granted

3

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

4

Here, plaintiff’s attorney was previously awarded $2,017.10 in EAJA fees. See ECF No. 27.

5

Counsel therefore must remit that amount to plaintiff.

6

Accordingly, IT IS HEREBY ORDERED that:

7

1. Plaintiff’s Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 28), is

8
9

GRANTED;
2. Counsel for plaintiff is awarded $10,962.00 in attorney’s fees under § 406(b); the

10

Commissioner shall certify that amount to be paid to counsel from the funds previously withheld

11

for the payment of such fees; and

12

3. Counsel for plaintiff is directed to remit to plaintiff the amount of $2,017.10 for EAJA

13

fees previously paid to counsel by the Commissioner.

14

DATED: September 25, 2019

15
16
17
18
19
20
21
22
23
24
25
26
27
28
4