Nolen v. Commissioner of Social Security

Filing 22

ORDER signed by Magistrate Judge Allison Claire on 12/18/19 GRANTING 20 Motion for Attorney Fees; AWARDING counsel for plaintiff $20,000.00 in attorney's fees; and DIRECTING plaintiff to remit to plaintiff the amount of $3,700.00 for EAJA fees previously paid to counsel by the Commissioner. (Coll, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DEBORAH ANN NOLEN,

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Plaintiff,

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v.

No. 2:17-cv-02505 AC

ORDER

ANDREW SAUL, Commissioner of Social
Security,
Defendant.

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

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(“Commissioner”), denying her application supplemental security income (“SSI”) benefits under

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Title XVI of the Social Security Act (“the Act”). ECF No. 1. On May 17, 2018, plaintiff filed

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her motion for summary judgment. ECF No. 14. On June 18, 2018, defendant filed a stipulation

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for voluntary remand. ECF No. 15. The stipulation was signed, and judgment entered, on June

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19, 2017. ECF Nos. 16, 17.

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Now pending before the court is plaintiff’s October 29, 2019 motion for an award of

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attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 20. On November 18, 2019, defendant

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filed a response asserting that defendant “is not in a position to either assent or object” to the fee

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request. ECF No. 21 at 2. However, defendant urged the court to consider whether defendant’s

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requested fee award, which represents 25% of plaintiff’s past due benefits and which in this case

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would amount to the equivalent of an hourly rate of $1,162.79, would constitute an unjust
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windfall for plaintiff’s counsel. Id. at 4. Plaintiff did not file any objection to the fee request.

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

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I. REASONABLENESS OF FEE REQUEST

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

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agreement. ECF No. 20-1. Pursuant to that agreement, plaintiff’s counsel now seeks attorney’s

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fees in the amount of $20,000.00 which represents just under 25% of the $85,179.28 in

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retroactive disability benefits received by plaintiff on remand, for 21.1 hours of attorney time

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expended on this matter, minus a credit of $3,700 for the EAJA fees previously paid. ECF No. 20

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at 1, 3. Attorneys are entitled to fees for cases in which they have successfully represented social

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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)). The goal of fee awards under

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

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

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

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535 U.S. at 805).

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

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

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

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boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable
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for the services rendered.” Id. at 807. “[A] district court charged with determining a reasonable

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

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

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

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

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

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

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

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

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

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

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Here, plaintiff’s counsel is an secured a very successful result for plaintiff, achieving a

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stipulated remand early in the case. ECF No. 16. There is no indication that a reduction of fees is

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warranted due to any substandard performance by counsel. There is also no evidence that

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plaintiff’s counsel engaged in any dilatory conduct resulting in excessive delay.

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The court acknowledges that the requested fee is substantial when calculated as an hourly

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rate. However, reducing fee awards to hourly rates can sometimes be misleading and give the

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impression of a windfall where in fact, counsel’s work was simply efficient. See Kazanjian v.

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Astrue, No. 09 CIV. 3678 BMC, 2011 WL 2847439, at *2 (E.D.N.Y. July 15, 2011) (awarding

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fees amounting to a $2,100 hourly rate and explaining that “If plaintiff’s attorney had been less

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than extraordinarily efficient, his imputed hourly rate would obviously be significantly reduced.

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Plaintiff’s attorney should not, however, be penalized for being efficient, which is exactly what I

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would be doing if I cut his requested fee.”) Here, defendant acknowledges that plaintiff’s counsel

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flagged this case early-on for potential voluntary remand, albeit for different reasons than those

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upon which remand was ultimately agreed. ECF No. 21 at 4. Plaintiff’s counsel drafted a motion
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for summary judgment which was succinct and apparently persuasive in achieving voluntary

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remand. ECF No. 14. Additionally, in the request for fees, plaintiff’s counsel included a letter

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sent to plaintiff instructing plaintiff on her opportunity to object to the fee request, providing

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postage paid envelopes, and offering to file any objections plaintiff wished to enter on her behalf.

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ECF No. 20 at 1-2. No objections from plaintiff were filed. Based on counsel’s result obtained,

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and counsel’s efficient work on this case, the court does not find the requested fee to be a

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windfall.

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The court finds that the $20,000 contingent fee, which represents just under 25% of the
$85,179.28 in past-due benefits paid to plaintiff, is not excessive in relation to the benefits

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awarded. In making this determination, the court recognizes the contingent fee nature of this case

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and counsel’s assumption of the risk of going uncompensated in agreeing to represent plaintiff on

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

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accepting these cases, including the risk that no benefits would be awarded or that there would be

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a long court or administrative delay in resolving the cases”). Finally, counsel has submitted a

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detailed billing statement in support of the requested fee. ECF No. 20-4.

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

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II. OFFSET FOR EAJA FEES
An award of § 406(b) fees must be 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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Here, plaintiff’s attorney was previously awarded $3,700.00 in EAJA fees. See ECF No. 31.

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Counsel therefore must remit that amount to plaintiff.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 20), is

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GRANTED;
2. Counsel for plaintiff is awarded $20,000.00 in attorney’s fees under § 406(b); the

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

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for the payment of such fees; and
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3. Counsel for plaintiff is directed to remit to plaintiff the amount of $3,700.00 for EAJA

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fees previously paid to counsel by the Commissioner.

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DATED: December 18, 2019

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