Lemmens v. Commissioner of Social Security

Filing 31

ORDER Granting 29 Motion for Attorney Fees. Plaintiff's attorney, Olinsky Law Group, is awarded attorneys' fees pursuant to 42 U.S.C. § 406(b) in the amount of $31,322.50. Signed by Magistrate Judge Brenda Weksler on 11/16/2022. (Copies have been distributed pursuant to the NEF - JQC)

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Case 2:20-cv-00881-BNW Document 31 Filed 11/16/22 Page 1 of 3 1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 *** 4 Joshua E. Lemmens, 5 6 Case No. 2:20-cv-00881-BNW Plaintiff, ORDER GRANTING MOTION FOR ATTORNEY’S FEES v. 7 Commissioner of Social Security, 8 Defendant. 9 10 Plaintiff’s attorney moves for an award of attorneys’ fees following Plaintiff’s successful 11 motion for remand. ECF No. 29. No party opposed the motion, although the defendant filed an 12 informative brief without taking a position on fees. ECF No. 30. The Court grants the motion. 13 Plaintiff entered into a contingency fee agreement with his attorney for 25% of any past- 14 due benefits awarded upon a reversal of an unfavorable decision by an administrative law judge. 15 ECF No. 29-1. The Court granted Plaintiff’s motion to remand and remanded for further 16 proceedings. ECF No. 21. Upon remand, the Social Security Administration awarded Plaintiff 17 approximately $125,290.00 in past-due benefits. ECF No. 29-1. 18 Under 42 U.S.C. § 406(b)(1)(A), when a claimant who is represented by counsel obtains a 19 favorable court judgment, “the court may determine and allow as part of its judgment a 20 reasonable fee for such representation, not in excess of 25 percent of the total of the past-due 21 benefits to which the claimant is entitled by reason of such judgment.” This fee is payable out of 22 the past-due benefits awarded to the claimant and not as an additional recovery from the 23 defendant. Id. 24 Although other fee-shifting schemes resort to use of the “lodestar” method to calculate a 25 reasonable attorney’s fee, § 406(b) is not a fee-shifting statute. Gisbrecht v. Barnhart, 535 U.S. 26 789, 802 (2002). The statute requires the attorney’s fee be taken from the past-due benefits 27 awarded to the claimant and not as an additional recovery from the defendant. Id. Thus, § 406(b) 28 Case 2:20-cv-00881-BNW Document 31 Filed 11/16/22 Page 2 of 3 1 “does not displace contingent-fee agreements as the primary means by which fees are set for 2 successfully representing Social Security benefits claimants in court. Rather, § 406(b) calls for 3 court review of such arrangements as an independent check, to assure that they yield reasonable 4 results in particular cases.” Id. at 807. The only statutorily-imposed constraint is that the fee 5 agreement cannot “provide for fees exceeding 25 percent of the past-due benefits.” Id. (citing 6 § 406(b)(1)(A)). Consequently, in Social Security cases, the court begins with the contingency fee 7 8 agreement and then “tests it for reasonableness.” Id. at 808. “[T]he question is whether the 9 amount need[s to] be reduced, not whether the lodestar amount should be enhanced.” Crawford v. 10 Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc). The court may reduce the fee award 11 “based on the character of the representation and the results the representative achieved.” 12 Gisbrecht, 535 U.S. at 808. Thus, the court “may properly reduce the fee for substandard 13 performance, delay, or benefits that are not in proportion to the time spent on the case.” 14 Crawford, 586 F.3d at 1151. The court may “consider the lodestar calculation, but only as an aid 15 in assessing the reasonableness of the fee.” Id. (emphasis omitted). The attorney seeking the fee award bears the burden of establishing the fee sought is 16 17 reasonable. Id. at 1148. The award of fees under § 406(b) lies within the court’s discretion. Id. at 18 1147. 19 Plaintiff’s attorney requests less than the full twenty-five percent of Plaintiff’s past due 20 benefits. He requests $31,322.50. ECF No. 29-1. He presents evidence that counsel and paralegals 21 spent 41.8 hours on the case. There is no evidence of substandard performance. Rather, counsel 22 obtained a favorable result in the form of a remand and subsequent award of substantial past 23 benefits. There is no evidence counsel caused any delay to increase the contingent amount. 24 Additionally, the fees are not excessively large in relation to the past-due benefits obtained for the 25 claimant. Plaintiff’s attorney, therefore, has met his burden of establishing a reasonable fee award 26 in the amount of $31,322.50. 27 28 Page 2 of 3 Case 2:20-cv-00881-BNW Document 31 Filed 11/16/22 Page 3 of 3 1 I previously granted the parties’ stipulation to award Plaintiff $7,600.00 in attorneys’ fees 2 under the Equal Access to Justice Act (EAJA). ECF No. 27. Accordingly, Plaintiff’s counsel will 3 be ordered to reimburse Plaintiff $7,600.00. 4 IT IS THEREFORE ORDERED that the motion for attorney’s fees (ECF No. 29) is 5 GRANTED. Plaintiff’s attorney, Olinsky Law Group, is awarded attorneys’ fees pursuant to 42 6 U.S.C. § 406(b) in the amount of $31,322.50. 7 8 DATED: November 16, 2022 9 10 11 BRENDA WEKSLER UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Page 3 of 3

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