Cox v. Commissioner of Social Security Administration ( 2021 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Zachary Cox, No. CV-18-08335-PCT-DWL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is the motion for an award of attorneys’ fees under 42 16 U.S.C. § 406(b), (Doc. 22), submitted by Plaintiff’s counsel, John E. Phillips 17 (“Counsel”). Counsel seeks $9,529.90 in § 406(b) fees, which appears to exceed 25% of 18 Plaintiff’s past-due benefits by $1.50. (Doc.22-2 at 2.) 19 The client-attorney fee agreement provides for a contingency fee—Plaintiff agreed 20 that the attorneys’ fee would be 25% of all past-due benefits awarded to her. (Doc. 24-2 21 at 2.) This is unsurprising, as 25% contingency fee agreements are nearly ubiquitous in 22 the context of social security appeals. Gisbrecht v. Barnhart, 535 U.S. 789, 802–04 23 (2002). 24 Section 406(b) “calls for court review” of contingency fee agreements. Id. at 807– 25 08. “Congress has provided one boundary line: Agreements are unenforceable to the 26 extent that they provide for fees exceeding 25 percent of the past-due benefits.” Id. 27 “Within the 25 percent boundary, as petitioners in this case acknowledge, the attorney for 28 the successful claimant must show that the fee sought is reasonable for the services rendered.” Jd. 2 The Court must determine whether it is appropriate to reduce Counsel’s recovery 3|| “based on the character of the representation and the results the representative achieved” 4|| by assessing, for example, whether Counsel is “responsible for delay” or whether “the || benefits are large in comparison to the amount of time counsel spent on the case.” Td. at || 808. Counsel included a record of the hours he spent representing Plaintiff. (Doc. 26-3.) 7\| Having reviewed the timesheet, the Court finds no cause to reduce Counsel’s recovery. || However, the Court will reduce the requested amount by $1.50, such that it will not 9|| exceed 25% of Plaintiff's past-due benefits. 10 Accordingly, 11 IT IS ORDERED that Counsel’s Motion for an Award of Attorney Fees under 42 12|| U.S.C. § 406(b) (Doc. 25) is GRANTED in the amount of $9,528.40. 13 IT IS FURTHER ORDERED that Plaintiff's counsel must refund the lesser of 14 || the EAJA fee award and the § 406(b) fee award to Plaintiff. 15 Dated this 22nd day of February, 2021. 16 17 fim 7 8 } i. Cee Dominic W. Lanza 19 United States District Judge 20 21 22 23 24 25 I This determination does not equate to use of the lodestar method. Crawford v. 26|| Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (“The lodestar method under-compensates attorneys for the risk they assume in representing SSDI claimants and ordinarily produces 27 remarkably smaller fees than would be produced by starting with the contingent □□□ agreement. A district court’s use of the lodestar to determine a reasonable fee thus 28] u imately works to the disadvantage of SSDI claimants who need counsel to recover any past-due benefits at all.”’). -2-