Samoy v. Commissioner of Social Security

Filing 25

ORDER signed by Magistrate Judge Edmund F. Brennan on 11/28/2022 GRANTING 23 Motion for Attorney Fees. Plaintiff's counsel is awarded a total of $9,000.00 in fees. Upon receipt of the $9,000.00 award, counsel shall refund to plaintiff the sum of $3,098.61, previously awarded under the EAJA. (Rodriguez, E)

Case 2:18-cv-00538-EFB Document 25 Filed 11/28/22 Page 1 of 3
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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERESA SAMOY,

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Plaintiff,

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No. 2:18-cv-00538-EFB (SS)

v.

ORDER

KILOLO KIJAKAZI, 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 $9,000.00. ECF No. 23. Defendant has filed a response.

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ECF No. 24. Plaintiff was awarded past due benefits, and she previously entered into a retainer

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agreement with her attorney providing that she would pay counsel 25 percent of any past-due

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benefits won as a result of the appeal in this case. ECF No. 23-1. The amount requested is less

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than 25% of the past due benefits awarded to plaintiff. See ECF No. 23-3 at 1 (plaintiff was

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awarded a total of $68,537.49 in past-due benefits). Plaintiff’s attorney spent 16.5 hours

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litigating the case. ECF No. 23-4.

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Case 2:18-cv-00538-EFB Document 25 Filed 11/28/22 Page 2 of 3
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42 U.S.C. § 406(b)(1)(A) provides, in relevant part:

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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. 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. 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 Nos. 19, 23-2, 23-3. The Commissioner withheld from that

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award $17,134.38, which represented 25 percent of the award, for attorney fees. See ECF No. 23

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at 3. The $9,000.00 fee requested by counsel represents an hourly rate of about $545.00. See

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ECF No. 24 at 3. Counsel did not delay these proceedings, and his representation of plaintiff was

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not substandard. Indeed, he successfully represented his 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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Case 2:18-cv-00538-EFB Document 25 Filed 11/28/22 Page 3 of 3
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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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Counsel acknowledges that the award must be offset by the fees previously awarded under

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the Equal Access to Justice Act (“EAJA”). ECF No. 23. Accordingly, the court will include in

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its ruling an order directing him to refund the EAJA fees previously awarded – $3,098.61 – to

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plaintiff. ECF No. 22. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (holding that where

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

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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. 23) is granted.

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3. Plaintiff’s counsel is awarded a total of $9,000.00 in fees pursuant to 42 U.S.C.

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§ 406(b).
4. Upon receipt of the $9,000.00 award, counsel shall refund to plaintiff the sum of
$3,098.61, previously awarded under the EAJA.

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Dated: November 28, 2022.

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