Swartz v. Colvin

Filing 30

ORDER granting 27 Motion for Attorney Fees. The Commissioner is directedto send Swartz's attorney, Richard E. Donaldson, $12,472.75, less any applicable processing fees allowed by statute. Signed by Judge Jennifer A. Dorsey on 5/17/2017. (Copies have been distributed pursuant to the NEF - DC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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Frances E. Swartz,

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Plaintiff

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v.

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Case No.: 2:15-cv-01811-JAD-PAL
Order Granting Attorney Fees

Carolyn W. Colvin, Acting
Commissioner of Social Security,

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[ECF No. 27]

Defendant

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Frances Swartz brought this action for judicial review of the Commissioner of Social

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Security’s final decision denying her application for disability insurance benefits under Title II of the

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Social Security Act (“SSA”).1 After granting the parties’ joint motion to remand the case to the

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Social Security Administration under sentence four of 42 U.S.C. § 405(g) for a new decision and the

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payment of benefits,2 I approved the parties’ stipulation for an award and payment of attorney fees

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and expenses to Swartz under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d),

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totaling $4,900.3 Swartz now moves for $16,972.75 in attorneys fees for 35.6 hours worked under

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42 U.S.C. § 406(b), which represents 25% of her past due disability benefits paid.4 The

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Commissioner does not oppose Swartz’s instant motion,5 Swartz agreed to the fee in a contingency

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fee agreement that she entered into with her attorney Richard E. Donaldson,6 and Swartz further

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supports the fee award in a letter she wrote to Magistrate Judge Peggy Leen, which states, “I have no

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ECF No. 1.

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ECF No. 23 (motion); ECF No. 24 (order).

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ECF No. 25 (stipulation); ECF No. 26 (order).

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ECF No. 27.

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ECF No. 28.

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ECF No. 27-2.

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reason to object to Mr. Donaldson’s payment because that is what we agreed to and he earned it.”7 I

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grant Swartz’s motion.

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Discussion

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Federal courts assess the reasonableness of fee requests, including requests in social security

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cases, using the “lodestar” method.8 “To calculate the lodestar amount, the court multiplies “the

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number of hours reasonably expended on the litigation . . . by a reasonable hourly rate.”9 The court

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then may adjust the lodestar upward or downward based on “a host of reasonableness factors,

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including the quality of representation, the benefit obtained . . . , the complexity and novelty of the

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issues presented, and the risk of nonpayment.”10 “Social security disability cases are often highly

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fact-intensive and require careful review of the administrative record, including complex medical

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evidence.”11 Because “lawyers are not likely to spend unnecessary time on contingency fee cases”

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due to the uncertainty of payment, “courts should generally defer to the winning lawyer’s

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professional judgment as to how much time he was required to spend on the case.”12

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The SSA permits an award of contingent attorney fees under 42 U.S.C. § 406(b) for

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representation before the district court, but the award may not exceed 25% of the total past-due

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benefits to which the claimant is entitled.13 “Congress harmonized fees payable by the government

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under EAJA with fees payable under § 406(b) out of the claimant’s past-due social security benefits”

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by requiring the attorney to “refund to the claimant the amount of the smaller fee . . . up to the point

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ECF No. 27-3.

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Costa v. Comm’r, 690 F.3d 1132, 1135 (9th Cir. 2012).

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Id. (quoting Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)).

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Stetson v. Grissom, 821 F.3d 1157, 1166–67 (9th Cir. 2016) (internal quotation marks omitted).

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Id. at 1137 n.1.

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Id. (internal quotation marks omitted).

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42 U.S.C. § 406(b)(1)(A).

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where the claimant receives 100% of the past-due benefits.”14

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Here, Donaldson was successful in helping Swartz obtain a reversal of the Commissioner’s

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unfavorable decision and a remand for the payment of disability insurance benefits she was

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originally denied. Donaldson also took this case on a contingency basis, at a rate Swartz agreed to

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and further supported by a letter to Judge Leen, and at a rate that the Commissioner does not oppose

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and that is within the range allowed by 42 U.S.C. § 406(b). Due to the complexity of social security

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disability cases, the risk of nonrecovery involved in taking a case on a contingent-fee basis, the fact

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that neither Swartz nor the Commissioner opposes Donaldson’s fee petition, and because

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Donaldson’s contingency-fee rate falls within the range that is specifically allowed under 42 U.S.C.

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§ 406(b), I grant Swartz’s motion and I award Donaldson $16,972.75 in attorneys fees under 42

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U.S.C. § 406(b). Previously, Donaldson received $4,900 in fees under the EAJA. Thus, when

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issuing the section 406(b) check for payment to Donaldson, the Commissioner is directed to subtract

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the amount previously awarded under EAJA and send Donaldson the balance of $12,472.75, less any

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applicable processing fees allowed by statute.

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Conclusion

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Accordingly, with good cause appearing and no reason to delay, IT IS HEREBY ORDERED

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that Swartz’s motion for attorneys fees [ECF No. 27] is GRANTED: the Commissioner is directed

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to send Swartz’s attorney, Richard E. Donaldson, $12,472.75, less any applicable processing fees

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allowed by statute.

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DATED May 17, 2017.

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_________________________________
Jennifer A. Dorsey
United States District Judge

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Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002).
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