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

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 OLGA ORDAZ, ) Case No.: 1:17-cv-01141-BAM 7 ) Plaintiff, ) ORDER GRANTING MOTION FOR 8 ) ATTORNEYS’ FEES PURSUANT TO 42 U.S.C. v. ) 9 ) § 406(b) 10 ANDREW M. SAUL,1 Commissioner of ) ) (Doc. No. 25) Social Security, ) 11 ) Defendant. 12 13 Pending before the Court is counsel for Plaintiff Olga Ordaz’s (“Plaintiff”) motion for 14 attorneys’ fees pursuant to 42 U.S.C. § 406(b). (Doc. No. 25). The Commissioner of Social Security 15 (the “Commissioner”) has filed a response to the motion analyzing the fee request but taking no 16 position as to its reasonableness. (Doc. No. 30). Having reviewed the motion and its supporting 17 documentation, as well as the case file, the Court GRANTS the motion and awards attorneys’ fees in 18 the amount of $10,449.75. 19 I. Relevant Background 20 Melissa Newel of Newel Law entered into a written contingent fee agreement with Plaintiff 21 dated August 7, 2017, which provided, in relevant part: 22 “If attorney is successful in vacating or remanding the adverse agency decision in 23 whole or in part, Client agrees to pay a fee equal to twenty five percent (25%) of the total amount of any past-due benefits awarded to Client, including any dependents’ 24 benefits, subject to the approval of the Court. It is understood that this contingent fee is to be withheld from past-due benefits awarded by the Social Security Administration 25 and paid directly to the attorney.” 26 27 1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of Civil 28 Procedure, Andrew M. Saul is substituted for Acting Commissioner Nancy A. Berryhill as the defendant in this suit. 1 (Doc. No. 25-1). 2 On August 23, 2017, Plaintiff filed this action seeking judicial review of the Commissioner’s 3 denial of benefits. (Doc. No. 1). After Plaintiff filed her Opening Brief, the parties stipulated to a 4 voluntary remand of the case for further administrative proceedings pursuant to sentence four of 42 5 U.S.C. § 405(g), which the Court approved on January 10, 2018. (Doc. Nos. 14, 19-20.) On October 6 16, 2018, the Court approved the parties’ stipulation to award Plaintiff $1,928.95 in attorneys’ fees 7 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (Doc. No. 23.) On remand, 8 the Commissioner issued a decision to grant Plaintiff’s application for benefits and, on March 17, 2020, 9 issued a notice indicating that Plaintiff was entitled to receive $83,590.00 in retroactive benefits. (Doc. 10 No. 25-3.) 11 In the present Motion, Plaintiff’s counsel asks the Court to award attorneys’ fees in the amount 12 of $10,449.75. (Doc. No. 25.) Plaintiff’s counsel contends this fee is reasonable in light of the services 13 rendered and results achieved. (Doc. No. 25 at 3-5.) Additionally, the fee counsel seeks is twelve and a 14 half percent (12.5%) of the past-due benefits payable to Plaintiff. (Id. at 4.) The Commissioner filed a 15 statement in response to the Motion providing an analysis of the fee request but taking no position 16 regarding its reasonableness. (Doc. No. 30.) 17 II. Legal Standard 18 An attorney may seek an award of fees for representation of a Social Security claimant who is 19 awarded benefits: 20 Whenever a court renders a judgment favorable to a claimant . . . who was represented before the court by an attorney, the court may determine and allow as part of its 21 judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such 22 judgment. . .. 23 42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) 24 controls fees awarded for representation of Social Security claimants). A contingency fee agreement is 25 unenforceable if it provides for fees exceeding twenty-five percent of past-due benefits. Gisbrecht, 26 supra, 535 U.S. at 807. 27 III. Discussion and Analysis 28 District courts “have been deferential to the terms of contingency fee contracts § 406(b) cases.” 1 Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). However, the Court must review 2 contingent-fee arrangements “as an independent check, to assure that they yield reasonable results in 3 particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, the Court should consider “the character of 4 the representation and the results the representative achieved.” Id. at 808. In addition, the Court should 5 consider whether the attorney performed in a substandard manner or engaged in dilatory conduct or 6 excessive delays, and whether the fees are “excessively large in relation to the benefits received.” 7 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc). 8 In this case, after carefully considering the fee agreement and the applicable law, the Court 9 finds Plaintiff’s counsel’s requested fees to be reasonable. In support of the motion for attorneys’ fees 10 under 42 U.S.C. § 406(b), Plaintiff’s counsel attached the contingent fee agreement which provided 11 for a contingent fee of twenty-five percent of any awarded retroactive benefits. (Doc. No. 25-1.) 12 Plaintiff’s counsel accordingly accepted the risk of loss in the representation. Plaintiff’s counsel 13 additionally expended a total of 9.65 hours while representing Plaintiff before the District Court. (Doc. 14 No. 25-2.) The requested fee amount represents approximately twelve and a half percent (12.5%) of 15 past-due benefits and is within the applicable maximum. As a result of counsel’s work, the matter was 16 remanded for further proceedings and the Commissioner awarded Plaintiff benefits. 17 Plaintiff’s counsel provided a copy of the notice of award and the motion for attorney’s fees to 18 Plaintiff. (Doc. No. 27.) Although served with the motion, Plaintiff did not challenge the requested 19 fees which attests to their reasonableness. Likewise, the Commissioner, in its advisory capacity, also 20 declined to dispute the propriety of the amount of the fees requested by Plaintiff’s counsel. (Doc. No. 21 26.) 22 Additionally, there is no indication counsel performed in a substandard manner or engaged in 23 severe dilatory conduct to the extent that a reduction in fees is warranted. To the contrary, Plaintiff 24 was able to secure a fully favorable decision and remand for further proceedings, including an award 25 of past-due benefits. Accordingly, the Court finds the fees sought by counsel are reasonable in light 26 the results achieved in this action, and the amount does not exceed twenty-five percent maximum 27 permitted under 42 U.S.C. § 406(b). 28 1 IV. Conclusion and Order 2 Based upon the foregoing, the Court ORDERS: 3 1. Plaintiff’s counsel’s motion for attorneys’ fees under 42 U.S.C. § 406(b) (Doc. No. 25) 4 is GRANTED; 5 2. Plaintiff’s counsel is awarded $10,449.75 in attorneys’ fees pursuant to 42 U.S.C. § 6 406(b); and 7 3. Plaintiff’s counsel shall compensate Plaintiff in the amount of $1,928.95 for fees 8 previously awarded pursuant to the EAJA. 9 10 IT IS SO ORDERED. 11 Dated: November 5, 2020 /s/ Barbara A. McAuliffe _ 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28