Jefferies 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 Maria Jefferies, No. CV-19-02381-PHX-MTL 10 Plaintiff, ORDER 11 v. 12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Plaintiff’s counsel, Kathryn Dicus, filed a renewed Motion for Award of Attorney’s 16 Fees Under 42 U.S.C. § 406(b) (the “Motion”). (Doc. 28.) The Court now rules. 17 I. 18 In a previous Order, the Court reversed an Administrative Law Judge’s partial denial 19 of Plaintiff’s application for Disability Insurance Benefits and remanded this matter to the 20 Social Security Administration for a calculation of benefits. (Doc. 17.) The Court 21 subsequently ordered a payment of $4,250.00 in attorney’s fees under the Equal Access to 22 Justice Act (“EAJA”), pursuant to the parties’ stipulation. (Docs. 19–20.) Ms. Discus then 23 moved for an award of attorney’s fees pursuant to 42 U.S.C. § 406(b). (Doc. 23.) Because 24 Ms. Dicus did not submit proof of service of that motion on Plaintiff, the Court denied her 25 initial request without prejudice. (Doc. 27.) Ms. Dicus now renews her request for 26 attorney’s fees under § 406(b), with proof that she sent the pending Motion to Plaintiff by 27 certified mail. (Doc. 28; Doc. 28–3.) Ms. Dicus seeks $11,992.50 in attorney’s fees for 28 representing Plaintiff on a contingent-fee basis. (Doc. 28 at 1.) 1 II. 2 Attorneys who successfully represent Social Security benefits claimants can recover 3 fees under § 406(b) of the Social Security Act. 42 U.S.C. § 406(b)(1)(A). Section 406(b) 4 provides that when “a court renders a judgment favorable to a claimant . . . who was 5 represented . . . by an attorney, the court may determine and allow as part of its judgment 6 a reasonable fee for such representation, not in excess of 25 percent of the total of the past- 7 due benefits.” Id. The fee is paid “out of, and not in addition to, the amount of [the] past- 8 due benefits.” Id. The Act’s 25% statutory cap on the fee does not preclude attorneys and 9 claimants from entering into contingent-fee agreements. Gisbrecht v. Barnhart, 535 U.S. 10 789, 807 (2002). “Courts [must] approach fee determinations by looking first to the 11 contingent-fee agreement, then testing it for reasonableness.” Id. at 808. District courts 12 may properly reduce the amount requested under a contingent-fee agreement for 13 “substandard performance, delay, or benefits that are not in proportion to the time spent on 14 the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (en banc). The burden 15 rests on the attorney to “show that the fee sought is reasonable for the services rendered.” 16 Gisbrecht, 535 U.S. at 807. If a claimant’s attorney receives fees under both the EAJA and 17 § 406(b) of the Social Security Act, the attorney must “refund to the claimant the amount 18 of the smaller fee.” Id. at 796 (citation and alteration omitted). 19 III. 20 Having reviewed Plaintiff’s contingent-fee agreement with Ms. Dicus, the Court 21 finds the attorney’s fees requested under § 406(b) to be reasonable. Plaintiff contracted to 22 pay 25% of past-due benefits on a contingent-fee basis. (Doc. 28–5.) Ms. Dicus requests 23 $11,992.50, the amount withheld from Plaintiff’s past-due benefits, in attorney’s fees. 24 (Doc. 23–3 at 3.) Her itemization of services indicates 21.3 hours of services rendered, 25 equaling an hourly fee of $563.03. (Doc. 28–4.) Ms. Dicus successfully convinced the 26 Court to remand Plaintiff’s case to the Social Security Administration for an award of 27 benefits. There is no indication of substandard performance or undue delay by Ms. Dicus 28 in prosecuting Plaintiff’s case. Crawford, 586 F.3d at 1151. There is also no indication of “fraud or overreaching in the making of the 25% contingent-fee agreement[ ].” Jd. And 2|| Ms. Dicus’s requested hourly rate is within the range of fees that have been approved by the Ninth Circuit. See id. at 1153 (approving fees equaling $519, $875, and $902 per hour). 4|| The Court therefore concludes that an award of fees of $11,992.50 is reasonable. The Court 5 || will grant Ms. Dicus’s renewed Motion for Award of Attorney’s Fees Under 42 U.S.C. 6|| § 406(b) (Doc. 28) and award $11,992.50 in fees, which shall be payable to Ms. Dicus. Because Plaintiff was also awarded EAJA fees, (Doc. 20), Plaintiffs counsel must refund 8 || the lesser of the two fee awards to Plaintiff. See Gisbrecht, 535 U.S. at 796. 9 IV. 10 Accordingly, 11 IT IS ORDERED granting the Amended Plaintiff's Attorney’s Motion for Award of Attorney’s Fees Under 42 U.S.C. § 406(b) (Doc. 28) in the amount of $11,992.50. 13 IT IS FURTHER ORDERED that Plaintiff's counsel must refund the lesser of the 14|| EAJA fee award and the § 406(b) fee award to Plaintiff. 15 Dated this 24th day of February, 2021. 16 Wich T. bundle 18 Michael T. Liburdi 19 United States District Judge 20 21 22 23 24 25 26 27 28 -3-