Shanahan v. Commissioner of Social Security

Filing 33

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/16/2021 GRANTING 30 Motion for Attorney Fees. Plaintiff's counsel is AWARDED a total of $13,749.25.00 in fees pursuant to 42 U.S.C. § 406(b), offset by any sum already forwar ded by the Administration from Plaintiff's past due benefits to Plaintiff's counsel; and Upon receipt of the $13,749.25 award, counsel shall refund to Plaintiff the sum of $1,900.00 previously awarded under the EAJA. (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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RITA J. SHANAHAN,

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No. 2:18-cv-0484-EFB

Plaintiff,
v.

ORDER

ANDREW SAUL, Commissioner of Social
Security,
Defendant.

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Pursuant to 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 $13,749.22. ECF No. 30. Plaintiff was awarded past due

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benefits, and she has previously entered into a retainer agreement with her attorneys which

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provides that she would pay counsel 25 percent of any past-due benefits won as a result of the

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appeal in this case. ECF No. 30-1. The amount requested is 25% of the past due benefits

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awarded to plaintiff. ECF Nos. 30, 30-2, 30-3. Plaintiff’s attorney spent 7.89 hours litigating the

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case in this court and counsel’s paralegals spent 3.3 hours. ECF No. 30-4.

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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

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out of 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. 1991).

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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. Bisbrecht 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. A “court may

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

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

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banc).

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

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awarded past-due benefits. ECF No. 30 at 6; ECF Nos. 30-2 & 30-3. The Social Security

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Administration withheld from that award $13,789.25, which represented 25 percent of the award,

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for attorney fees. Id. at 3. This amount translates to a rate of about $1229 per attorney and

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paralegal hour. Counsel did not delay these proceedings, and their representation of plaintiff was

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not substandard. Indeed, they successfully represented their client’s interests before this court.

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Based on the risk of loss taken in representing plaintiff, counsel’s experience in the field of Social

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Security law, and the results achieved in this case, the court finds that fee request is reasonable.

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See De Vivo v. Berryhill, No. 1:15-cv-1332-EPG, 2018 WL 4262007 (E.D. Cal. Sept. 6, 2018)

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(awarding fees at effective hourly range of $1,116.26); Jamieson v. Astrue, No. 1:09cv0490 LJO

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DLB, 2011 WL 587096 (E.D. Cal. Feb. 9, 2011) (finding fee at effective hourly rate of $1,169.49

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reasonable); Naddour v. Colvin, No.: 13-CV-1407-BAS, 2016 WL 4248557 (S.D. Cal. Aug. 11,

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2016) (awarding fee at effective hourly rate of $1,063); Kazanjian v. Astrue, No. 09 civ. 3678

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(BMC), 2011 WL 2847439, at *1-2 (E.D.N.Y. July 15, 2011) (finding that counsel “performed

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well, diligently, and with unusual efficiency,” and awarding fee at hourly rate of $2,100).

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In its response, the government states that it appears that $6,000 of the 25% fee award set

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aside by the Administration has already been paid to plaintiff’s counsel. The letter sent from the

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Administration indicates that it set aside $13,749.25 of the benefits award as the 25% possibly

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payable to counsel, and that it separated out $6,000 from that amount as payable to counsel under

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a fee agreement. ECF No. 30-3 at 3-4. It is not clear that the government has paid the $6,000 to

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counsel, and counsel does not clarify the situation in his reply brief. He does state that he “is not

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seeking $6000 plus $13,749.25” but is instead seeking a total of $13,749.25. ECF No. 32. The

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court will resolve this issue by directing the agency to offset the fee award by any amount already

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forwarded to plaintiff’s counsel.

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Counsel concedes that the award should be offset by the fees previously awarded under

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the under the Equal Access to Justice Act (“EAJA”). ECF No. 30 at 6. Counsel requests that the

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court include in its ruling an order directing him to refund the EAJA fees previously awarded –

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$1,900.00 – to plaintiff. Id. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (holding that

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where attorney’s fees are awarded under both EAJA and § 406(b), the attorney must refund the

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smaller of the two awards to the plaintiff).

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Accordingly, it is hereby ORDERED that:

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1. Plaintiff’s counsel’s motion for attorney’s fees (ECF No. 30) is granted;

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2. Plaintiff’s counsel is awarded a total of $13,749.25.00 in fees pursuant to 42 U.S.C.

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§ 406(b), offset by any sum already forwarded by the Administration from plaintiff’s past due

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benefits to plaintiff’s counsel; and

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3. Upon receipt of the $13,749.25 award, counsel shall refund to plaintiff the sum of

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$1,900.00 previously awarded under the EAJA.

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DATED: April 16, 2021.

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