(SS) Ohman v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEBBIE OHMAN, No. 2:16-cv-2722-JAM-EFB 12 Plaintiff, 13 v. FINDINGS AND RECOMMENDATIONS 14 ANDREW SAUL, Commissioner of Social Security, 15 Defendant. 16 17 18 Pursuant to 42 U.S.C. § 406(b), counsel for plaintiff in the above-entitled action seeks an 19 award of attorney fees in the amount of $15,521.50, which is 25 percent of past benefits due to 20 plaintiff.1 ECF No. 31. Plaintiff entered into a retainer agreement with his attorney which 21 provides that he would pay counsel 25 percent of any past-due benefits won as a result of the 22 appeal in this case. ECF No. 31-2 at 1. Counsel spent 54.7 professional hours on plaintiff’s case. 23 ECF No. 31 at 7-11. 24 ///// 25 ///// 26 1 Plaintiff was previously awarded fees under the EAJA in the amount of $10,329.87, plus 27 $400.00 for costs, for a total award of $10,729.87. See ECF Nos. 28 and 33. Counsel acknowledges that any award under section 406(b) would require a refund to plaintiff the sum of 28 $10,729.87 previously awarded under the EAJA. ECF No. 31 at 5. 1 42 U.S.C. § 406(b)(1)(A) provides, in relevant part: 2 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 3 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 4 the total of the past-due benefits to which the claimant is entitled by reason of such judgment. 5 6 Rather than being paid by the government, fees under the Social Security Act are awarded 7 out of the claimant’s disability benefits. Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991), 8 receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 1991). 9 However, the 25 percent statutory maximum fee is not an automatic entitlement; the court also 10 must ensure that the requested fee is reasonable. Bisbrecht v. Barnhart, 535 U.S. 789, 808-09 11 (2002) (“We hold that § 406(b) does not displace contingent-fee agreements within the statutory 12 ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those 13 agreements.”). “Within the 25 percent boundary . . . the attorney for the successful claimant must 14 show that the fee sought is reasonable for the services rendered.” Id. at 807. A “court may 15 properly reduce the fee for substandard performance, delay, or benefits that are not in proportion 16 to the time spent on the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (en 17 banc). 18 After this court remanded for further proceedings, plaintiff was found disabled and 19 awarded past-due benefits. ECF No. 31-1. The Social Security Administration withheld 20 $15,521.50, which was 25 percent of plaintiff’s past due benefits, to pay her attorney. Id. 21 Plaintiff’s counsel’s request for $15,521.50, which is the statutory maximum, would constitute an 22 hourly rate of $278.82. Counsel did not delay these procedures, and his representation of plaintiff 23 was not substandard. Indeed, he successfully represented his client’s interests before this court. 24 Based on the risk of loss taken in representing plaintiff, counsel’s experience in the field of Social 25 Security law, and the results achieved in this case, the court finds that fee request is reasonable. 26 See De Vivo v. Berryhill, No. 1:15-cv-1332-EPG, 2018 WL 4262007 (E.D. Cal. Sept. 6, 2018) 27 (awarding fees at effective hourly range of $1,116.26); Jamieson v. Astrue, No. 1:09cv0490 LJO 28 DLB, 2011 WL 587096 (E.D. Cal. Feb. 9, 2011) (finding fee at effective hourly rate of $1,169.49 wOAOe 2 LU UV □□□ CO VAIN ERT BR MVOC OP POR Vee PAY VM VI 1 || reasonable); Naddour v. Colvin, No.: 13-CV-1407-BAS, 2016 WL 4248557 (S.D. Cal. Aug. 11, 2 || 2016) (awarding fee at effective hourly rate of $1,063); Kazanjian v. Astrue, No. 09 civ. 3678 3 | (BMC), 2011 WL 2847439, at *1-2 (E.D.N.Y. July 15, 2011) (finding that counsel “performed 4 | well, diligently, and with unusual efficiency,” and awarding fee at hourly rate of $2,100). 5 Counsel concedes that the fee award pursuant to 42 U.S.C. § 406(b) should be offset by 6 || the fee awarded previously granted the Equal Access to Justice Act (“EAJA”). ECF No. 31 at 5. 7 || Accordingly, upon receipt of a fee award in the amount $15,521.50, counsel shall refund to 8 | plaintiff the sum of $10,729.87 previously granted under the EAJA. ECF No. 31 at 31; ECF No. 9 | 33; see Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (holding that where attorney’s fees are 10 || awarded under both EAJA and § 406(b), the attorney must refund the smaller of the two awards 11 | to the plaintiff). 12 Accordingly, it is hereby RECOMMENDED that: 13 1. Plaintiff’s counsel’s motion for attorney’s fees (ECF No. 31) be granted; 14 2. Plaintiffs counsel be awarded $15,521.50 in fees pursuant to 42 U.S.C. § 406(b); and 15 3. Upon receipt of the $15,521.50 award, counsel shall refund to plaintiff the sum of 16 || $10,729.87 previously awarded under the EAJA. 17 These findings and recommendations are submitted to the United States District Judge 18 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days 19 | after being served with these findings and recommendations, any party may file written 20 || objections with the court and serve a copy on all parties. Such a document should be captioned 21 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 22 || within the specified time may waive the right to appeal the District Court’s order. Turner v. 23 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 24 | DATED: September 25, 2020. 25 tid, PDEA 26 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 27 28