McClellan v. Commissioner of Social Security Administration ( 2019 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Donna McClellan, ) No. CV-18-08026-PCT-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) Commissioner of Social Security ) 12 Administration, ) 13 ) ) 14 Defendant. ) 15 Pending before the Court is Plaintiff’s Motion for an Award of Attorneys’ Fees 16 Under 42 U.S.C. § 406(b) (Doc. 24). 17 On October 2, 2018, this Court granted the parties’ Stipulated Motion for Remand 18 (Docs. 19, 20). On remand, Plaintiff was awarded $67,811.501 in back benefits due, and a 19 Notice of Award was issued on August 20, 2019 (Doc. 24–1). Plaintiff now seeks an award 20 of $16,952.88 in attorneys’ fees under 42 U.S.C. § 406(b) (Doc. 24). 21 The Social Security Act provides that the Court may award reasonable attorneys’ 22 fees for representation before the Court, not to exceed twenty-five percent of past-due 23 benefits. 42 U.S.C. § 406(b)(1)(A). The Supreme Court in Gisbrecht v. Barnhart provides 24 district courts with guidance on how to evaluate such Section 406(b) contingent-fee 25 requests for reasonableness. 26 27 1 The Social Security Administration send Plaintiff an initial payment of $50,858.62 and withheld $16,952.88 in potential attorneys’ fees for a total of $67,811.50 in back 28 benefits due. Most plausibly read, . . . § 406(b) does not displace contingent- 1 fee agreements as the primary means by which fees are set for successfully representing Social Security benefits claimants in 2 court. Rather, § 406(b) calls for court review of such arrangements as an independent check, to assure that they yield 3 reasonable results in particular cases. 4 Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). In determining whether such a fee award 5 is reasonable under 42 U.S.C. § 406(b), the Court may look to factors including the 6 character of the representation, the results achieved, delay, and proportionality. Gisbrecht, 7 535 U.S. at 808; Crawford v. Astrue, 586 F.3d 1142, 1148, 1151 (9th Cir. 2009). 8 Defendant does not object to the motion (Doc. 25). Upon review, the Court finds 9 the request for $16,952.88 is twenty-five percent of Plaintiff’s past-due benefits and does 10 not exceed the statutory cap. In addition, the instant record provides no indication of 11 substandard performance, dilatory litigation tactics, or disproportionality.2 Accordingly, 12 this Court concludes that a consideration of the Gisbrecht factors warrants a finding that 13 the fee requested is reasonable. 14 IT IS THEREFORE ORDERED that the Motion for an Award of Attorneys’ Fees 15 Under 42 U.S.C. § 406(b) (Doc. 24) is granted. 16 /// 17 /// 18 /// 19 /// 20 /// 21 22 2 The fee request results in an effective hourly rate of $1,215.26 (Doc 24 at 11). “In 23 cases of this type, the Ninth Circuit sitting en banc has approved effective hourly rates of $519, $875, and $902 without finding that they are unreasonable.” Young v. Colvin, No. 24 CV–11–538–PHX–SMM, 2014 WL 590335, at *2 (D. Ariz. 2014) (citing Crawford, 586 F.3d at 1153); see also Claypool v. Barnhart, 294 F.Supp.2d 829, 833–34 (S.D. W. Va. 25 2003) (finding Defendant’s argument that an effective hourly rate of $1,433.12 for 12.56 hours of work represents a windfall to the attorney to be without merit); Palos v. Colvin, 26 No. CV 15–04261–DTB, 2016 WL 5110243, at *2 (C.D. Cal. Sept. 20, 2016) (approving a hourly rate of $1,546.39); Villa v. Astrue, No. CIV–S–06–0846 GGH, 2010 WL 118454, 27 at *1 (E.D. Cal. Jan. 7, 2010) (approving a rate in excess of $1,000 per hour and noting that “[r]educing § 406(b) fees after Crawford is dicey business.”). Taking into account the risk 28 inherent in contingent-fee arrangements, the Court concludes the hourly rate is reasonable. 1 IT IS FURTHER ORDERED that Counsel is awarded $16,952.88 in accordance 2) with 42 U.S.C. § 406(b). Upon receipt of this sum, Counsel shall refund the previously 3) awarded EAJA fees of $2,800.88 to Plaintiff. 4 Dated this 22nd day of October, 2019. 5 6 7 LRG 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28