Alvarado v. Commissioner of Social Security

Filing 25

ORDER signed by Magistrate Judge Carolyn K. Delaney on 6/6/19 GRANTING 23 Motion for Attorney Fees. Plaintiff's counsel is awarded $11,000.00 in attorney fees pursuant to 28 U.S.C. § 406, to be offset in the amount of $2,900.00 previously awarded under EAJA. Plaintiff's counsel shall reimburse Nicholas Antonio Alvarado in the amount of $2,900.00. (Mena-Sanchez, L)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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NICOLAS ANTONIO ALVARADO,

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No. 2:17-cv-01519 CKD

Plaintiff,
v.

ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

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Based on 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 $11,000.00 for 15.9 hours of professional time devoted to

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the representation of plaintiff before this court. Counsel concedes that this amount should be

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offset in the amount of $2,900.00 for fees previously awarded under EAJA.

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42 U.S.C. § 406(b)(1)(A) provides, in relevant part:
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 out of

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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. 2001).

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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. Gisbrecht 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.
Counsel seeks fees for 15.9 hours. The Court has considered the character of counsel’s

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representation and the good results achieved by counsel, which included an award of retroactive

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benefits totaling over $44,000.00. Counsel submitted a detailed billing statement that supports

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her request. (ECF No. 23-4.) There is no indication that a reduction of the award is warranted

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due to any substandard performance by plaintiff’s counsel, as counsel secured a successful result.

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

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delay.

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Based on the quality of counsel’s representation and the results achieved in this case, the

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undersigned finds the number of hours expended to be reasonable. Accordingly, the undersigned

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will award the amount of attorney fees requested.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s counsel is awarded $11,000.00

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in attorney fees pursuant to 28 U.S.C. § 406, to be offset in the amount of $2,900.00 previously

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awarded under EAJA. Plaintiff’s counsel shall reimburse Nicholas Antonio Alvarado in the

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amount of $2,900.00.

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Dated: June 6, 2019

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2/alvarado1519.fee-406(a)

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