(SS) Nedashkovskiy v. Commissioner of Social Security

Filing 28

ORDER signed by Magistrate Judge Jeremy D. Peterson on 11/21/2024 GRANTING 26 Motion for Attorney Fees and AWARDING Plaintiff's counsel $10,315.18 in fees pursuant to 42 U.S.C. § 406(b). Upon receipt of the award, Counsel shall refund to Plaintiff the sum of $3,935.41 previously awarded under the EAJA. (Mendez Licea, O)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

IRINA NEDASHKOVSKIY,

12
13
14
15
16
17

Case No. 2:22-cv-0410-JDP

Plaintiff,
v.

ORDER

MARTIN O’MALLEY, Commissioner of
Social Security,
Defendant.
Plaintiff’s counsel seeks an award of attorney fees under 42 U.S.C. § 406(b). ECF No. 26.

18

Plaintiff entered into a contingent fee agreement providing that she would pay counsel up to

19

twenty-five percent of any award of past-due benefits. ECF No. 26-2. After this court remanded

20

the action for further proceedings, plaintiff was found disabled and awarded $70,060.70 in past-

21

due benefits. ECF No. 26-1 at 3. Counsel now seeks $10,315.18 in attorney fees, which is less

22

than twenty-five percent of the total past-due benefits awarded. ECF No. 26.

23
24
25
26
27
28

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
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.

1

42 U.S.C. § 406(b)(1)(A). Rather than being paid by the government, fees under section 406(b)

2

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

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

total of 21.50 hours of attorney time on this case. ECF No. 26 at 6. Counsel’s request for

13

$10,315.18, which is approximately fifteen percent of the statutory maximum, would constitute

14

an hourly rate of approximately $479.77 for attorney services. Counsel did not engage in dilatory

15

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

16

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

17

award of benefits. See ECF Nos. 20 & 26-1. Given counsel’s experience, the result obtained in

18

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

19

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

20

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

21

2011) (finding fees at effective hourly rate of $1,169.49 reasonable); 2016 WL 4248557 (S.D.

22

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

23

5110243 (C.D. Cal. Sept. 20, 2016) ) (finding fees at effective hourly rate of $1,546.39

24

reasonable).

25

Counsel concedes that the $3,935.41 award should be offset by the fees previously

26

awarded under the under the Equal Access to Justice Act (“EAJA”). ECF No. 26 at 2; see ECF

27

No. 25. He also indicates that he will reimburse plaintiff the amount previously awarded under

28

the EAJA. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (holding that where attorney’s
2

1

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

2

awards to the plaintiff).

3

Accordingly, it is hereby ORDERED that:

4

1. The motion for attorney fees, ECF No. 26, is granted.

5

2. Plaintiff’s counsel is awarded $10,315.18 in fees pursuant to 42 U.S.C. § 406(b).1

6

3. Upon receipt of the $10,315.18 award, counsel shall refund to plaintiff the sum of

7

$3,935.41 previously awarded under the EAJA.

8
9

IT IS SO ORDERED.

10
Dated:

November 21, 2024

11

JEREMY D. PETERSON
UNITED STATES MAGISTRATE JUDGE

12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

1

The notice of award of benefits indicate that counsel has already been awarded
attorney’s fees under 42 U.S.C. § 406(a), which were paid from the twenty-five percent of pastdue benefits withheld by the Commissioner. ECF No. 26-1 at 4 (for work performed at the
administrative level). To the extent the remaining withheld benefits are insufficient to cover the
award under § 406(b), counsel must recover the difference from plaintiff. Dobson v.
Commissioner, No. 2:09-cv-01460-KJN, 2013 WL 6198185, at *4 (E.D. Cal. Nov. 27, 2013).
3