(SS) Burns v. Commissioner of Social Security

Filing 29

ORDER signed by Magistrate Judge Jeremy D. Peterson on 11/21/2024 GRANTING 28 Motion for Attorney Fees. Plaintiff's counsel is AWARDED $16,000.00 in fees. Upon receipt of the $16,000.00 award, counsel shall refund to plaintiff the sum of $8,200.00 previously awarded under the EAJA. (Zignago, K.)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JAMES BURNS,

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Case No. 2:20-cv-1182-JDP
Plaintiff,

v.

ORDER

MARTIN O’MALLEY, Commissioner of
Social Security,
Defendant.

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Plaintiff’s counsel seeks an award of attorney fees under 42 U.S.C. § 406(b). ECF No. 28.

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Plaintiff entered into a contingent fee agreement that provided that he would pay counsel twenty-

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five percent of any award of past-due benefits. ECF No. 28-3 at 1. After this court remanded for

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further proceedings, plaintiff was found disabled and awarded past-due benefits. ECF Nos. 24 &

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28-2 at 1. The Social Security Administration withheld $31,691.75, which was twenty-five

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percent of plaintiff’s past due benefits, to pay his attorney. Id. Plaintiff’s counsel requests

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$16,000.00, which is the statutory maximum, and which would work out to an hourly rate of

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$388.25.

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An attorney is entitled to reasonable fees for successfully representing social security
claimants in district court.
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

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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.
42 U.S.C. § 406(b)(1)(A). Rather than being paid by the government, fees under section 406(b)
are paid by the claimant from the awarded past-due benefits. Crawford v. Astrue, 586 F.3d 1142,
1147 (9th Cir. 2009) (en banc) (citing Gisbrecht, 535 U.S. at 802). The twenty-five percent
statutory maximum fee is not an automatic entitlement; the court must ensure that the requested
fee is reasonable. Gisbrecht, 535 U.S. at 808-09 (“We hold that § 406(b) does not displace
contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts to review
for reasonableness fees yielded by those agreements.”). In assessing whether a fee is reasonable,
the court should consider “the character of the representation and the results the representative
achieved.” Id. at 808. A “court may properly reduce the fee for substandard performance, delay,
or benefits that are not in proportion to the time spent on the case.” Crawford, 586 F.3d at 1151.
The court finds that the requested fees are reasonable. Counsel’s billing records reflect a
total of 41.20 hours of attorney time on this case. ECF No. 28-4 at 1-2. Counsel’s request for
$16,000.00, which is less than the statutory maximum, would constitute an hourly rate of
approximately $388.25 for attorney services. Counsel did not engage in dilatory conduct or
perform in a substandard manner. Indeed, counsel’s representation resulted in this matter being
remanded for further proceedings, which resulted in a favorable decision and an award of
benefits. See ECF Nos. 24 & 28-2. Given counsel’s experience, the result obtained in this case,
and the risk of loss in representing plaintiff, the court finds the hourly rate reasonable. See, e.g.,
De Vivo v. Berryhill, 2018 WL 4262007 (E.D. Cal. Sept. 6, 2018) (awarding fees at effective
hourly range of $1,116.26); Jamieson v. Astrue, 2011 WL 587096 (E.D. Cal. Feb. 9, 2011)
(finding fees at effective hourly rate of $1,169.49 reasonable); 2016 WL 4248557 (S.D. Cal. Aug.
11, 2016) (awarding fees at effective hourly rate of $1,063); Palos v. Colvin, 2016 WL 5110243
(C.D. Cal. Sept. 20, 2016) ) (finding fees at effective hourly rate of $1,546.39 reasonable).
Counsel concedes that the $8,200 award should be offset by the fees previously awarded
under the under the Equal Access to Justice Act (“EAJA”). ECF No. 28 at 3; see ECF No. 27.

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She also indicates that she will reimburse plaintiff the amount previously awarded under the

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EAJA. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (holding that where attorney’s fees

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are awarded under both EAJA and § 406(b), the attorney must refund the smaller of the two

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awards to the plaintiff).

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Accordingly, it is hereby ORDERED that:

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1. The motion for attorney fees, ECF No. 28, is granted.

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2. Plaintiff’s counsel is awarded $16,000.00 in fees pursuant to 42 U.S.C. § 406(b).

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3. Upon receipt of the $16,000.00 award, counsel shall refund to plaintiff the sum of

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$8,200.00 previously awarded under the EAJA.

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IT IS SO ORDERED.

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Dated:

November 21, 2024

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JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

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