(SS)Chuba v. Commissioner of Social Security

Filing 25

ORDER signed by Magistrate Judge Dennis M. Cota on 7/29/2022 GRANTING 23 Motion for Attorney Fees. Counsel is awarded fees pursuant to 42 U.S.C. § 406(b) in the amount of $6,701.95, paid to counsel by the Commissioner of Social Security and Counsel shall reimburse to Plaintiff $2,701.14 previously paid to counsel under the EAJA. (Perdue, C.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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MONICA L. CHUBA,

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Plaintiff,

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No. 2:20-CV-0315-DMC

v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff, who is proceeding with retained counsel, brought this action for judicial

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review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g).

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Final judgment was entered on November 2, 2021. See ECF No. 23-1, pg. 1. Pending before the

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Court is Plaintiff’s counsel’s Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) in the

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amount of $6,701.95. See ECF No. 23. Plaintiff was provided notice of counsel’s motion and

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has not filed any response thereto. See id. at 3.

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I. PROCEDURAL HISTORY

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Counsel began representing Plaintiff on February 3, 2020. ECF No. 23-1, pg.1.

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Plaintiff and counsel had a contingent fee agreement requiring Plaintiff to pay counsel 25% of

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any past-due benefits awarded by the agency, less any payment to counsel under the Equal

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Access to Justice Act (EAJA). See ECF No. 23-3, pg. 1. Plaintiff with counsel initiated an action

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for judicial review of an unfavorable administrative decision on February 11, 2020. See ECF No.

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1. The matter was remanded to the agency via stipulation of the parties on November 2, 2020.

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See ECF No. 22. Additionally, pursuant to stipulation of the parties, Plaintiff was awarded

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$,2701.14 in attorney’s fees pursuant to the EAJA, minus any offsets determined by the

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government. See ECF No. 21. Plaintiff’s counsel states that the agency presumably withheld

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$10,569.95 for attorney’s fees, reflecting 25% of a total award of past-due benefits in the amount

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of $42,279.80. See ECF No. 23-2, pg. 2. Plaintiff’s counsel requests a reduced fee of $6,701.95.

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Id.

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II. DISCUSSION
Under the Social Security Act, “[w]henever a court renders a judgment favorable

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to a claimant under this subchapter who was represented before the court by an attorney, the court

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may determine and allow as part of its judgment a reasonable fee for such representation, not in

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excess of 25 percent of the total past-due benefits to which the claimant is entitled by reason of

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such judgment. . . .” 42 U.S.C. § 406(b)(1)(A). No other fee may be payable or certified for such

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representation except as allowed in this provision. See id.

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A remand constitutes a “favorable judgment” under § 406(b). See Shalala v.

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Schaefer, 509 U.S. 292, 300-01 (1993). While the Ninth Circuit has not directly addressed the

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issue, all other circuits to address the issue have concluded that the district court is authorized to

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award fees under § 406(b) when it remands for further proceedings and, following remand, the

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claimant is awarded past-due benefits. See Garcia v. Astrue, 500 F. Supp. 2d 1239, 1243 (C.D.

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Cal. 2007). Limiting § 406(b) awards to cases in which the district court itself awards past-due

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benefits would discourage counsel from requesting a remand where it is appropriate. See Bergen
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v. Comm’r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006).
The 25 percent statutory maximum fee is not an automatic entitlement, and the

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court must ensure that the fee actually requested is reasonable. See Gisbrecht v. Barnhart, 535

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U.S. 789, 808-09 (2002). “Within the 25 percent boundary . . . the attorney for the successful

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claimant must show that the fee sought is reasonable for the services rendered.” Id. at 807. “In

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determining the reasonableness of fees sought, the district court must respect ‘the primacy of

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lawful attorney-client fee arrangements,’ ‘looking first to the contingent-fee agreement, then

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testing it for reasonableness.’” Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (quoting

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Gisbrecht, 535 U.S. at 793 and 808).

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The Supreme Court has identified five factors that may be considered in

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determining whether a fee award under a contingent-fee agreement is unreasonable and therefore

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subject to reduction by the court. See Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S.

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at 808). Those factors are: (1) the character of the representation; (2) the results achieved by the

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representative; (3) whether the attorney engaged in dilatory conduct in order to increase the

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accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the

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amount of time counsel spent on the case; and (5) the attorney’s record of hours worked and

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counsel’s regular hourly billing charge for non-contingent cases. See id.

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Finally, an award of fees under § 406(b) is offset by any prior award of attorney’s
fees granted under the Equal Access to Justice Act. See Gisbrecht, 535 U.S. at 796.
The Commissioner has filed a response to Plaintiff’s counsel’s motion. This

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filing, however, amounts to nothing more than a recitation of applicable caselaw and contains

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nothing in the way of analysis specific to this case. In particular, the Commissioner’s response

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does not set forth any reasons why the Court should deny, in whole or in part, counsel’s motion.

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The Court, therefore, considers Plaintiff’s counsel’s motion as unopposed. In this case, having

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considered the factors above, the Court finds Plaintiff’s counsel’s request of $6,701.95 reasonable

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given the fee agreement with Plaintiff, the results achieved, and the lack of any evidence of

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dilatory conduct designed to increase past-due benefits. In making this finding, the Court notes

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that the Commissioner stipulated to an award of $2,701.14 under the EAJA, which Plaintiff’s

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counsel appropriately asks be ordered to offset any award requested in the current motion.

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III. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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Plaintiff’s counsel’s motion, ECF No. 23, is granted and counsel is

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awarded fees pursuant to 42 U.S.C. § 406(b) in the amount of $6,701.95, paid to counsel by the

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Commissioner of Social Security out of past-due benefits awarded to Plaintiff and withheld by the

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agency, to the extent such benefits have not already been paid to Plaintiff; and

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2.

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under the EAJA.

Counsel shall reimburse to Plaintiff $2,701.14 previously paid to counsel

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Dated: July 29, 2022
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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