Clayton Wood v. Carolyn Colvin

Filing 31

ORDER by Magistrate Judge Jacqueline Scott Corley denying without prejudice 29 Motion for Attorney Fees. (ahm, COURT STAFF) (Filed on 7/11/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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CLAYTON WOOD,
Plaintiff,

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United States District Court
Northern District of California

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Case No.14-cv-03764-JSC
ORDER RE: PLAINTIFF’S MOTION
FOR FEES

v.
NANCY A. BERRYHILL,

Re: Dkt. No. 29

Defendant.

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In this Social Security case, Plaintiff Clayton Wood moves for attorneys’ fees pursuant to

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42 U.S.C. § 406(b). (Dkt. No. 27.) Defendant Nancy A. Berryhill, the Commissioner of the

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Social Security Administration (“SSA”), submitted a response analyzing the fee request which

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does not take a position as to the reasonableness of the fee request. After carefully considering the

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arguments and briefing submitted, the Court concludes that oral argument is unnecessary, see Civ.

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L.R. 7-1(b), and denies the motion without prejudice.

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BACKGROUND
This case stems from Plaintiff’s appeal of the SSA’s denial of his application for disability

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benefits for a combination of physical and mental impairments, including: post traumatic stress

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disorder, head injury, head pain, depression, ringing in the inner ear, blurred eye vision, and short

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term memory loss. On August 14, 2015, the Court granted Plaintiff’s motion for summary

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judgment, denied Defendant’s cross motion for summary judgment, and remanded to the SSA for

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further proceedings, concluding that the Administrative Law Judge (“ALJ”) committed legal error

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in weighing the medical evidence and evaluating Plaintiff’s credibility. (Dkt. No. 19.) On

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remand, the ALJ determined that Plaintiff was, and continues to be, disabled as of November

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2011. (Dkt. No. 29-1 at 1.1) As a result, the SSA awarded Plaintiff past-due benefits, in the

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amount of $53,881.50 for himself and $19,476 for his minor daughter, as well as ongoing benefits.

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(Id.) On December 28, 2015, pursuant to the parties’ stipulation, the Court awarded $4,303.92 in

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fees to Plaintiff’s counsel pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C.

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§ 2412(d). (Dkt. No. 27.) Plaintiff subsequently filed a motion for fees pursuant to 42 U.S.C. §

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406(b). (Dkt. No. 29.) Counsel requests fees in the amount of $15,339.00; this total represents

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25% of Plaintiff’s and his daughter’s past-due benefits. (Dkt. No. 27 at 8.)
DISCUSSION

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Section 406(b) provides that “[w]henever a court renders a judgment favorable to a [social

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security] claimant under this subchapter who was represented before the court by an attorney, the

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United States District Court
Northern District of California

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court may determine and allow as part of its judgment a reasonable fee” to claimant’s attorney;

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such a fee can be no more than 25% of the total of past-due benefits awarded to the claimant. 42

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U.S.C. § 406(b)(1)(A). A court may award such a fee even if the court’s judgment did not

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immediately result in an award of past-due benefits; where the court has rendered a judgment

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favorable to a claimant by reversing an earlier determination by an ALJ and remanding for further

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consideration, the court may calculate the 25% fee based upon any past-due benefits awarded on

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remand. See, e.g., Crawford v. Astrue, 586 F.3d 1142 (9th Cir.2009) (en banc); Wells v. Colvin,

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No. 12-CV-05287-JST, 2015 WL 4072847, at *1 (N.D. Cal. July 2, 2015).

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Under Section 406(b), a court must serve “as an independent check” of contingency fee

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agreements “to assure that they yield reasonable results.” Gisbrecht v. Barnhart, 535 U.S. 789,

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807 (2002). Section 406(b) “does not displace contingent-fee agreements within the statutory

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ceiling; instead, [Section] 406(b) instructs courts to review for reasonableness fees yielded by

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those agreements.” Id. at 808-09. The court’s review of a fee agreement is based on the character

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of the representation and the results achieved, see Gisbrecht, 535 U.S. at 808, and can include

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analyzing: whether counsel provided substandard representation, any dilatory conduct by counsel

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to accumulate additional fees, whether the requested fees are excessively large in relation to the

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Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
ECF-generated page numbers at the top of the documents.
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benefits achieved, and the risk counsel assumed by accepting the case. See Crawford, 586 F.3d at

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1151-52; Wells, 2015 WL 4072847 at *1.
Plaintiff’s counsel has provided insufficient information for the Court to analyze the

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reasonableness of his fee request. First, counsel bases his fee request in part on the contingency

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fee agreement that he had with Plaintiff which provides in part that he shall receive 25 percent of

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any award of past-due benefits. (Dkt. No. 29-3 at 1.) However, this agreement was signed by Mr.

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Wood June 15, 2015 and “approved by the law firm” August 2, 2015—which is four months after

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the motion for summary judgment was fully briefed and while that motion was under

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submission—that is, after all the substantive work had been performed in this case. (Dkt. No. 29-

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3 at 3.) To the extent that there is another retainer agreement, which would govern the time period

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United States District Court
Northern District of California

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relevant to the Court’s order granting Plaintiff’s motion for summary judgment, counsel may re-

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file his motion for attorney’s fees attaching the applicable retainer agreement.2 Second, counsel

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has failed to submit any evidence or documentation supporting his request for $15,339 in fees.

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Notably, he has not submitted a declaration attesting to his hourly rate, detailing the hours

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expended on this matter, or otherwise explaining the reasonableness of his request for $15,399.

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Finally, as the Commissioner notes, the docket does not reflect that counsel served a copy of his

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motion for fees on Plaintiff.

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Accordingly, Plaintiff’s counsel’s motion for attorney’s fees is DENIED without prejudice

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to renewal provided he addresses the issues raised herein. Should counsel due so, he must serve a

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copy of the motion on Plaintiff and file proof of service of the same.

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This Order disposes of Docket No. 29.

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IT IS SO ORDERED.

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Dated: July 11, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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Further, Plaintiff’s Notice of Change in Benefits letter which was attached to counsel’s motion
states in part that “Under the fee agreement, the representative cannot charge more than
$6000.00 for his or her work.” (Dkt. No. 29-1 at 2.) Counsel shall explain what fee agreement
this statement refers to in any renewed fee motion.
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