(SS) Morrow v. Commissioner of Social Security ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CARMEN ANN MORROW, No. 2:17-cv-0250 AC 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, Commissioner of Social Security, 15 16 Defendant. 17 18 Plaintiff sought judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying his application for a period of disability and disability insurance 20 benefits (“DIB”) benefits under Title II and supplemental security income (SSI) under Title XVI 21 of the Social Security Act (“the Act”). On October 31, 2017, the parties stipulated to remand, and 22 an order and judgment was entered. ECF Nos. 22, 23. 23 Now pending before the court is plaintiff’s August 21, 2019 amended motion for an award 24 of attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 28. On September 12, 2019, 25 defendant filed a response taking “no position on the reasonableness of the request.” ECF No. 30 26 at 4. For the reasons set forth below, the motion will be granted. 27 //// 28 //// 1 I. REASONABLENESS OF FEE REQUEST 2 At the outset of the representation, plaintiff and his counsel entered into a contingent-fee 3 agreement. ECF No. 29-1. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s 4 fees in the amount of $10,926.00, which represents 25% of the retroactive disability benefits 5 received by plaintiff on remand, for 10.25 hours of attorney time expended on this matter. ECF 6 Nos. 28-1, 28 at 4. 7 Attorneys are entitled to fees for cases in which they have successfully represented social 8 security claimants: 9 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 10 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 11 the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security 12 may . . . certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits. 13 14 42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42 15 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing 16 party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) 17 (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The goal of fee awards under 18 § 406(b) is “‘to protect claimants against “inordinately large fees” and also to ensure that 19 attorneys representing successful claimants would not risk “nonpayment of [appropriate] fees.”’” 20 Parrish v. Comm'r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting Gisbrecht, 21 535 U.S. at 805). 22 The 25% statutory maximum fee is not an automatic entitlement, and the court must 23 ensure that the fee requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“406(b) does not 24 displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts 25 to review for reasonableness fees yielded by those agreements”). “Within the 25 percent 26 boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable 27 for the services rendered.” Id. at 807. “[A] district court charged with determining a reasonable 28 fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee 1 arrangements,’ ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 2 Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793, 808). 3 In determining whether the requested fee is reasonable, the court considers “‘the character 4 of the representation and the results achieved by the representative.’” Crawford, 586 F.3d at 1151 5 (quoting Gisbrecht, 535 U.S. at 808). In determining whether a reduction in the fee is warranted, 6 the court considers whether the attorney provided “substandard representation or delayed the 7 case,” or obtained “benefits that are not in proportion to the time spent on the case.” Id. Finally, 8 the court considers the attorney’s record of hours worked and counsel’s regular hourly billing 9 charge for non-contingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at 10 808); see also, E.D. Cal. R. 293(c)(1) (in fixing attorney’s fees the court considers “the time and 11 labor required”). Below, the court will consider these factors in assessing whether the fee 12 requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable. 13 Here, plaintiff’s counsel is an experienced attorney who secured a successful result for 14 plaintiff. See Declaration of Jesse S. Kaplan (“Kaplan Decl.”) (ECF No. 28 at 6-7). There is no 15 indication that a reduction of fees is warranted due to any substandard performance by counsel. 16 There is also no evidence that plaintiff’s counsel engaged in any dilatory conduct resulting in 17 excessive delay. The court finds that the $10,962.00 fee, which represents 25% of the past-due 18 benefits paid to plaintiff, is not excessive in relation to the benefits awarded. In making this 19 determination, the court recognizes the contingent fee nature of this case and counsel’s 20 assumption of the risk of going uncompensated in agreeing to represent plaintiff on such terms. 21 See Crawford, 586 F.3d at 1152 (“[t]he attorneys assumed significant risk in accepting these 22 cases, including the risk that no benefits would be awarded or that there would be a long court or 23 administrative delay in resolving the cases”). Finally, counsel has submitted a detailed billing 24 statement in support of the requested fee. ECF No. 28 at 4. Defendant has not opposed the 25 reasonableness of the award. 26 Accordingly, for the reasons stated above, the court concludes that the fees sought by 27 counsel pursuant to § 406(b) are reasonable. 28 1 Il. OFFSET FOR EAJA FEES 2 An award of § 406(b) fees must be offset by any prior award of attorney’s fees granted 3 || under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. 4 || Here, plaintiff’s attorney was previously awarded $2,017.10 in EAJA fees. See ECF No. 27. 5 | Counsel therefore must remit that amount to plaintiff. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiffs Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 28), is 8 | GRANTED; 9 2. Counsel for plaintiff is awarded $10,962.00 in attorney’s fees under § 406(b); the 10 | Commissioner shall certify that amount to be paid to counsel from the funds previously withheld 11 | for the payment of such fees; and 12 3. Counsel for plaintiff is directed to remit to plaintiff the amount of $2,017.10 for EAJA 13 || fees previously paid to counsel by the Commissioner. 14 | DATED: September 25, 2019 ~ 19 Chthien—Chare ALLISON CLAIRE 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28