Smith v. Astrue

Filing 26

ORDER GRANTING MOTION FOR ATTORNEYS FEES 25 (Illston, Susan) (Filed on 4/24/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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TRUDI SMITH,

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United States District Court
For the Northern District of California

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No. C 09-02303 SI

Plaintiff,

ORDER GRANTING MOTION FOR
ATTORNEYS FEES

v.
MICHAEL J. ASTRUE,

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Defendant.

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Now before the Court is plaintiff’s motion for attorney’s fees pursuant to 42 U.S.C. § 406(b).

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The motion was filed on March 30, 2012, and has not been opposed by defendant.1 This case has an

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extensive procedural history. Relevant to the instant motion, attorney Ian Sammis represented plaintiff

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before the administrative agency in regards to an unsuccessful application for Supplemental Security

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Income benefits, and then on appeal to this Court. By Order dated August 11, 2010, the Court denied

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the parties’ cross-motions for summary judgment and remanded for further proceedings before the ALJ.

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Docket No. 21. On December 7, 2011, the Social Security Administration Commissioner issued a

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Notice of Award, awarding plaintiff past-due benefits starting in January 2009 and totaling $21,170.40.

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Docket No. 25-1.

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On October 25, 2010, pursuant to a stipulation, plaintiff was awarded $3,855.75 dollars in

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attorneys fees and $131.34 in costs under the Equal Access to Justice Act. Docket No. 24. Plaintiff’s

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counsel now seeks an award under 42 U.S.C. § 406(b), of $5,292.60 in attorneys fees, which represents

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This motion is scheduled for hearing on May 4, 2012. Pursuant to Civil Local Rule 7-1(b),
the Court finds this matter appropriate for resolution without oral argument, and hereby VACATES the
hearing.

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25% of the past-due benefits due to Ms. Smith. Under the fee agreement between plaintiff and her

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counsel, plaintiff’s counsel is to be paid a total maximum of 25% of the past-due benefits being withheld

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as attorney’s fees for work performed under § 406(a) and § 406(b). Docket No. 25-2.

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Although not addressed in the motion, the amount plaintiff’s counsel seeks – $5292.60 – would

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need to be off-set by the $3987.09 in EAJA attorneys fees and costs plaintiff was awarded. See Docket

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No. 24. After the off-set, plaintiff would be responsible for paying her counsel a net fee of $1,305.51,

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or 6.1% of past-due benefits. In support of the motion, plaintiff’s counsel has submitted the fee

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agreement with plaintiff and a declaration describing time spent on the case and setting forth counsel’s

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experience.2

United States District Court
For the Northern District of California

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Section 406(b) of the Act provides that when a plaintiff prevails on a judgment, the Court may

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determine a reasonable fee for the plaintiff’s counsel, which can be no more than 25 percent of the

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plaintiff’s entitlement to the total past-due benefits. 42 U.S.C. § 406(b)(1)(A). The Court must review

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counsel’s request for fees “as an independent check” to assure that the contingency fee agreement will

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“yield reasonable results in particular cases.” See Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).

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Section 406(b), “does not displace contingent-fee agreements within the statutory ceiling; instead

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§ 406(b) instructs courts to review for reasonableness fees yielded by those agreements.” Id. at 808-09.

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The Court should consider the character of the representation and the results achieved in making its

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determination. Id. An award of § 406 fees is offset by any award of attorney fees granted under the

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EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796.

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The Court finds that the amount of fees sought is reasonable. As an initial matter, the Court

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finds that the fee agreement is within the statutory ceiling; the fee agreement between plaintiff and her

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counsel provides that if plaintiff received a favorable decision, plaintiff agreed to pay counsel a fee no

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greater than 25 percent of the past-due benefits she was awarded. The Court further finds that plaintiff’s

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counsel assumed a substantial risk of not recovering attorney’s fees because the claims had been denied

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after exhausting administrative remedies. The work by plaintiff’s counsel was not insubstantial;

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Plaintiff’s original counsel, Ian Sammis, is now deceased but plaintiff’s current counsel –
Robert C. Weems – has submitted a declaration drafted by Mr. Sammis before his death, in support of
this fee motion. The motion asks the Court to award the fees to the estate of Mr. Sammis.
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plaintiff’s counsel was successful in having this matter remanded back to the Social Security and

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plaintiff prevailed on remand and obtained more past-due benefits as well as ongoing benefits. After

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review of the record, the Court finds that the requested attorney’s fees are reasonable and do not

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constitute a windfall. See Gisbrecht, 535 U.S. 789; see Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1036-

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37 (N.D. Cal. 2003).

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CONCLUSION
For the foregoing reasons, the Court hereby GRANTS plaintiff’s motion for attorney fees and

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awards fees in the amount of $5,292.60 pursuant to 42 U.S.C. § 406(b)(1)(A) to the estate of Ian

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United States District Court
For the Northern District of California

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Sammis. The Court further directs plaintiff’s counsel’s estate to refund to plaintiff the amount of

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$3,855.75, previously awarded and delivered to counsel under the EAJA, for a net total under § 406(b)

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of $ 1,305.51.

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IT IS SO ORDERED.

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Dated: April 24, 2012
SUSAN ILLSTON
United States District Judge

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