(SS) Rush v. Commissioner of Social Security

Filing 24

ORDER signed by Magistrate Judge Allison Claire on 01/02/2025 GRANTING 22 Motion for Attorney Fees. Counsel for Plaintiff is AWARDED $9,000 in Attorney's Fees. The Commissioner shall certify that amount to be paid to counsel from the funds previously withheld for the payment of such fees; and Counsel for plaintiff is DIRECTED to remit to plaintiff the amount of $1,350.00 for EAJA fees previously paid to counsel by the Commissioner. (Deputy Clerk KML)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JASON LEE RUSH,

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No. 2:21-cv-1665 AC

Plaintiff,
v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
Plaintiff sought judicial review of a final decision of the Commissioner of Social Security

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(“Commissioner”), denying his application benefits under the Social Security Act (“the Act”).

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On June 9, 2022, the court reversed and remanded the action to the Commissioner, ruling in favor

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of the plaintiff. ECF No. 16.

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Now pending before the court is plaintiff’s November 21, 2024 motion for an award of

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attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 22. Defendant responded to the fee

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request. ECF No. 23. For the reasons set forth below, the motion will be granted.

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I. REASONABLENESS OF FEE REQUEST

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At the outset of the representation, plaintiff and his counsel entered into a contingent-fee

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agreement. ECF No. 22-3. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s

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fees in the amount of $9,000, which represents less than 25% of the $70,695.66 in retroactive

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disability benefits received by plaintiff on remand, for 4.09 attorney and 11.74 paralegal hours
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expended on this matter. ECF Nos. 22-2 at 2-3.
Attorneys are entitled to fees for cases in which they have successfully represented social
security claimants:
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, and the Commissioner of Social Security
may . . . certify the amount of such fee for payment to such attorney
out of, and not in addition to, the amount of such past-due benefits.

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42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42

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U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing

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party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009)

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(en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The goal of fee awards under

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§ 406(b) is “‘to protect claimants against “inordinately large fees” and also to ensure that

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attorneys representing successful claimants would not risk “nonpayment of [appropriate] fees.”’”

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Parrish v. Comm'r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting Gisbrecht,

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535 U.S. at 805).

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The 25% statutory maximum fee is not an automatic entitlement, and the court must

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ensure that the fee requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“406(b) does not

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

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to review for reasonableness fees yielded by those agreements”). “Within the 25 percent

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boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable

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for the services rendered.” Id. at 807. “[A] district court charged with determining a reasonable

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fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee

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arrangements,’ ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’”

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Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793, 808).

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In determining whether the requested fee is reasonable, the court considers “‘the character

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of the representation and the results achieved by the representative.’” Crawford, 586 F.3d at 1151

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(quoting Gisbrecht, 535 U.S. at 808). In determining whether a reduction in the fee is warranted,
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the court considers whether the attorney provided “substandard representation or delayed the

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case,” or obtained “benefits that are not in proportion to the time spent on the case.” Id. Finally,

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the court considers the attorney’s record of hours worked and counsel’s regular hourly billing

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charge for non-contingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at

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808); see also, E.D. Cal. R. 293(c)(1) (in fixing attorney’s fees the court considers “the time and

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labor required”). Below, the court will consider these factors in assessing whether the fee

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requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable.

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Here, plaintiff’s counsel is an experienced attorney who secured a successful result for

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plaintiff. There is no indication that a reduction of fees is warranted due to any substandard

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performance by counsel. There is also no evidence that plaintiff’s counsel engaged in any

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dilatory conduct resulting in excessive delay. The court finds that the $9,000 fee, which does not

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exceed 25% of the amount paid in past-due benefits paid to plaintiff, is not excessive in relation

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to the benefits awarded. In making this determination, the court recognizes the contingent fee

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nature of this case and counsel’s assumption of the risk of going uncompensated in agreeing to

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represent plaintiff on such terms. See Crawford, 586 F.3d at 1152 (“[t]he attorneys assumed

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significant risk in accepting these cases, including the risk that no benefits would be awarded or

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that there would be a long court or administrative delay in resolving the cases”).

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Accordingly, for the reasons stated above, the court concludes that the fees sought by
counsel pursuant to § 406(b) are reasonable.

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II. OFFSET FOR EAJA FEES
An award of § 406(b) fees must be offset by any prior award of attorney’s fees granted

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under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796.

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Here, plaintiff’s attorney was previously awarded $1,350.00 in EAJA fees. See ECF No. 19.

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Counsel therefore must remit that amount to plaintiff.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 22), is

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GRANTED;
2. Counsel for plaintiff is awarded $9,000 in attorney’s fees under § 406(b); the
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Commissioner shall certify that amount to be paid to counsel from the funds previously withheld

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for the payment of such fees; and

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3. Counsel for plaintiff is directed to remit to plaintiff the amount of $1,350.00 for EAJA

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fees previously paid to counsel by the Commissioner.

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DATED: January 2, 2025

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