Armstrong v. Barnhart

Filing 28

ORDER granting 25 Plaintiff's Motion for Attorney Fees. Accordingly, the court awards attorney fees pursuant to 42 U.S.C. § 406(b) in the amount of $13,220.50 and orders distribution of funds withheld by the Commissioner for this purpose. Signed by Judge Jeffrey T. Miller on 8/26/09. (tkl) (av1).

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. MAXINE E. ARMSTRONG, Plaintiff, CASE NO. 05 CV 0999 JM (JMA) ORDER GRANTING MOTION FOR ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(b) Doc. No. 25

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

Pending before the court is Plaintiff Maxine E. Armstrong's motion for attorney fees pursuant to section 206(b) of the Social Security Act, 42 U.S.C. § 406(b). (Doc. No. 25.) Plaintiff requests an award of $13,222.50 as a reasonable attorney fee for her counsel's representation of her on a contingency-fee basis in this action. A sum of $4,000.00 was previously awarded pursuant to the Equal Access to Justice Act. (Doc. No. 15.) Therefore, Plaintiff now asks the court to approve distribution of the difference, $9,220.50, out of the funds withheld by the Commissioner from Plaintiff's past due benefits for payment of attorney fees, and return of the balance of the withheld funds, $4,000.00, to Plaintiff. On July 31, 2009, the Commissioner filed a statement of non-opposition to Plaintiff's request. (Doc. No. 27.) Plaintiff's motion is supported by sufficient documentation and support to show the attorney fee was reasonable. See 42 U.S.C. § 406(b)(1)(A) ("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-1-

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due benefits"); Gisbrecht v. Barnhart, 535 U.S. 789 (2002). In addition, Plaintiff submitted documentation which indicates the Commissioner withheld $13,220.50 with the 25 percent threshold in mind and that Plaintiff agreed to pay a contingency fee of 25 percent. (Mot., Att. B and C.) In light of the evidence provided by Plaintiff, as well as the Commissioner's non-opposition, the court hereby GRANTS Plaintiff's motion for attorney fees. Accordingly, the court awards attorney fees pursuant to 42 U.S.C. § 406(b) in the amount of $13,220.50 and orders distribution of funds withheld by the Commissioner for this purpose as outlined above. IT IS SO ORDERED. DATED: August 26, 2009 Hon. Jeffrey T. Miller United States District Judge

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