Carlson v. Commissioner of Social Security
Filing
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ORDER signed by Magistrate Judge Edmund F. Brennan on 10/5/20 GRANTING 21 Motion for Attorney Fees. Plaintiff's counsel is awarded $32,350.42 in fees pursuant to 42 U.S.C. § 406(b); and upon receipt of the $32,350.42 award, counsel shall refund to plaintiff the sum of $11,500.00 previously awarded under the EAJA. (Kaminski, H)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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STEVEN T. CARLSON,
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Plaintiff,
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No. 2:18-cv-979-EFB
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 $32,350.42, which is approximately 20 percent of past
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benefits due to plaintiff. ECF No. 21. Plaintiff entered into a retainer agreement with his
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attorney which provides that he would pay counsel 25 percent of any past-due benefits won as a
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result of the appeal in this case. ECF No. 22-1. Counsel spent 66.2 professional hours on
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plaintiff’s case. ECF No. 22-3.
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. 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 in the amount of $161,364.00. ECF No. 22-2. Plaintiff’s counsel’s
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request for of $32,350.42, which is less than the statutory maximum, would constitute an hourly
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rate of $520.10. Counsel did not delay these proceedings and her representation of plaintiff was
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not substandard. Indeed, she successfully represented her 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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Counsel concedes that the $32,350.42 award should be offset by the fees previously
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awarded under the under the Equal Access to Justice Act (“EAJA”). ECF No. 21 at 6-7; see ECF
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No. 20. Counsel represents to the court that upon receipt of a fee award in the amount of
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$32,350.42, she will immediately refund plaintiff the sum of $11,500.00 previously awarded
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under the EAJA. ECF No. 21-1. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (holding
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that where attorney’s fees are awarded under both EAJA and § 406(b), the attorney must refund
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the 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. 21) is granted;
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2. Plaintiff’s counsel is awarded $32,350.42 in fees pursuant to 42 U.S.C. § 406(b); and
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3. Upon receipt of the $32,350.42 award, counsel shall refund to plaintiff the sum of
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$11,500.00 previously awarded under the EAJA.
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DATED: October 5, 2020.
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