(SS) Elliott v. Commissioner of Social Security

Filing 25

ORDER signed by Magistrate Judge Jeremy D. Peterson on 11/21/2024 GRANTING 22 Motion for Attorney Fees. Plaintiff's counsel is AWARDED $21,200.00 in fees. Upon receipt of the $21,200.00 award, counsel shall refund to plaintiff the sum of $8,293.66 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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TARILYN TRACY ELLIOTT,

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Plaintiff,
v.

ORDER

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

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Case No. 2:21-cv-1202-JDP

Plaintiff’s counsel seeks an award of attorney fees under 42 U.S.C. § 406(b).1 ECF No.

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22. Plaintiff entered into a contingent fee agreement providing that she would pay counsel

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twenty-five percent of any award of past-due benefits. ECF No. 22-3 at 1. After this court

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remanded for further proceedings, plaintiff was found disabled and awarded $113,713.70 past-

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due benefits. ECF No.22-1 at 3. Plaintiff’s counsel’s request $21,200.00 in attorney fees, which

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is less than the statutory maximum, and which would work out to an effective hourly rate of

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$550.64.

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

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Although the motion for fees was filed under plaintiff’s name, plaintiff’s counsel is the
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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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42 U.S.C. § 406(b)(1)(A). Rather than being paid by the government, fees under section 406(b)

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are paid by the claimant from the awarded past-due benefits. Crawford v. Astrue, 586 F.3d 1142,

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1147 (9th Cir. 2009) (en banc) (citing Gisbrecht, 535 U.S. at 802). The twenty-five percent

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statutory maximum fee is not an automatic entitlement; the court must ensure that the requested

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fee is reasonable. Gisbrecht, 535 U.S. at 808-09 (“We hold that § 406(b) does not displace

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contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts to review

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for reasonableness fees yielded by those agreements.”). In assessing whether a fee is reasonable,

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the court should consider “the character of the representation and the results the representative

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achieved.” Id. at 808. A “court may properly reduce the fee for substandard performance, delay,

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or benefits that are not in proportion to the time spent on the case.” Crawford, 586 F.3d at 1151.

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The court finds that the requested fees are reasonable. Counsel’s billing records reflect a

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total of 38.5 hours of attorney time on this case. ECF No. 22-4 at 1. Counsel’s request for

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$21,200.00, which is the equivalent to less than the statutory maximum, would constitute an

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hourly rate of approximately $550.64 for attorney services. Counsel did not engage in dilatory

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conduct or perform in a substandard manner. Indeed, counsel’s representation resulted in this

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matter being remanded for further proceedings, which resulted in a favorable decision and an

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award of benefits. See ECF Nos. 18 & 22. Given counsel’s experience, the result obtained in this

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case, and the risk of loss in representing plaintiff, the court finds the hourly rate reasonable. See,

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e.g., De Vivo v. Berryhill, 2018 WL 4262007 (E.D. Cal. Sept. 6, 2018) (awarding fees at effective

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hourly range of $1,116.26); Jamieson v. Astrue, 2011 WL 587096 (E.D. Cal. Feb. 9, 2011)

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(finding fees at effective hourly rate of $1,169.49 reasonable); 2016 WL 4248557 (S.D. Cal. Aug.

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11, 2016) (awarding fees at effective hourly rate of $1,063); Palos v. Colvin, 2016 WL 5110243

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(C.D. Cal. Sept. 20, 2016) ) (finding fees at effective hourly rate of $1,546.39 reasonable).

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Counsel concedes that the $8,293.66 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. 22 at 5; see ECF

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No. 21. He also indicates that he will reimburse plaintiff the amount previously awarded under

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

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fees 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. 22, is granted.

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2. Plaintiff’s counsel is awarded $21,200.00 in fees pursuant to 42 U.S.C. § 406(b).

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3. Upon receipt of the $21,200.00 award, counsel shall refund to plaintiff the sum of

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$8,293.66 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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