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)

Case 2:20-cv-00881-BNW Document 31 Filed 11/16/22 Page 1 of 3

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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Joshua E. Lemmens,

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Case No. 2:20-cv-00881-BNW
Plaintiff,
ORDER GRANTING MOTION FOR
ATTORNEY’S FEES

v.

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Commissioner of Social Security,

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Defendant.

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Plaintiff’s attorney moves for an award of attorneys’ fees following Plaintiff’s successful

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motion for remand. ECF No. 29. No party opposed the motion, although the defendant filed an

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informative brief without taking a position on fees. ECF No. 30. The Court grants the motion.

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Plaintiff entered into a contingency fee agreement with his attorney for 25% of any past-

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due benefits awarded upon a reversal of an unfavorable decision by an administrative law judge.

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ECF No. 29-1. The Court granted Plaintiff’s motion to remand and remanded for further

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proceedings. ECF No. 21. Upon remand, the Social Security Administration awarded Plaintiff

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approximately $125,290.00 in past-due benefits. ECF No. 29-1.

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Under 42 U.S.C. § 406(b)(1)(A), when a claimant who is represented by counsel obtains a

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favorable court judgment, “the court may determine and allow as part of its judgment a

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reasonable fee for such representation, not in excess of 25 percent of the total of the past-due

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benefits to which the claimant is entitled by reason of such judgment.” This fee is payable out of

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the past-due benefits awarded to the claimant and not as an additional recovery from the

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defendant. Id.

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Although other fee-shifting schemes resort to use of the “lodestar” method to calculate a

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reasonable attorney’s fee, § 406(b) is not a fee-shifting statute. Gisbrecht v. Barnhart, 535 U.S.

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789, 802 (2002). The statute requires the attorney’s fee be taken from the past-due benefits

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awarded to the claimant and not as an additional recovery from the defendant. Id. Thus, § 406(b)

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Case 2:20-cv-00881-BNW Document 31 Filed 11/16/22 Page 2 of 3

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“does not displace contingent-fee agreements as the primary means by which fees are set for

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successfully representing Social Security benefits claimants in court. Rather, § 406(b) calls for

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court review of such arrangements as an independent check, to assure that they yield reasonable

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results in particular cases.” Id. at 807. The only statutorily-imposed constraint is that the fee

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agreement cannot “provide for fees exceeding 25 percent of the past-due benefits.” Id. (citing

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§ 406(b)(1)(A)).
Consequently, in Social Security cases, the court begins with the contingency fee

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agreement and then “tests it for reasonableness.” Id. at 808. “[T]he question is whether the

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amount need[s to] be reduced, not whether the lodestar amount should be enhanced.” Crawford v.

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Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc). The court may reduce the fee award

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“based on the character of the representation and the results the representative achieved.”

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Gisbrecht, 535 U.S. at 808. Thus, the court “may properly reduce the fee for substandard

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performance, delay, or benefits that are not in proportion to the time spent on the case.”

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Crawford, 586 F.3d at 1151. The court may “consider the lodestar calculation, but only as an aid

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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

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reasonable. Id. at 1148. The award of fees under § 406(b) lies within the court’s discretion. Id. at

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1147.

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Plaintiff’s attorney requests less than the full twenty-five percent of Plaintiff’s past due

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benefits. He requests $31,322.50. ECF No. 29-1. He presents evidence that counsel and paralegals

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spent 41.8 hours on the case. There is no evidence of substandard performance. Rather, counsel

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obtained a favorable result in the form of a remand and subsequent award of substantial past

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benefits. There is no evidence counsel caused any delay to increase the contingent amount.

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Additionally, the fees are not excessively large in relation to the past-due benefits obtained for the

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claimant. Plaintiff’s attorney, therefore, has met his burden of establishing a reasonable fee award

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in the amount of $31,322.50.

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Case 2:20-cv-00881-BNW Document 31 Filed 11/16/22 Page 3 of 3

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I previously granted the parties’ stipulation to award Plaintiff $7,600.00 in attorneys’ fees

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under the Equal Access to Justice Act (EAJA). ECF No. 27. Accordingly, Plaintiff’s counsel will

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be ordered to reimburse Plaintiff $7,600.00.

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IT IS THEREFORE ORDERED that the motion for attorney’s fees (ECF No. 29) is

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GRANTED. Plaintiff’s attorney, Olinsky Law Group, is awarded attorneys’ fees pursuant to 42

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U.S.C. § 406(b) in the amount of $31,322.50.

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DATED: November 16, 2022

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BRENDA WEKSLER
UNITED STATES MAGISTRATE JUDGE

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