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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ADOLFO LUGO, ) Case No.: 1:18-cv-0807 JLT ) 12 Plaintiff, ) ORDER GRANTING COUNSEL’S MOTION ) FOR ATTORNEY FEES PURSUANT TO 13 v. ) 42 U.S.C. § 406(b) ) 14 ANDREW M. SAUL, ) (Doc. 27) Commissioner of Social Security, ) 15 ) Defendant. ) 16 17 Jonathan Pena, counsel for Plaintiff Adolfo Lugo, seeks an award of attorney fees pursuant to 18 42 U.S.C. § 406(b). (Doc. 27) Neither Plaintiff nor the Commissioner of Social Security have opposed 19 the motion. For the following reasons, the motion for attorney fees is GRANTED. 20 I. Relevant Background 21 In 2018, Plaintiff entered into a contingent fee agreement with with Jonathan Pena. (Doc. 27-2) 22 Plaintiff indicated that he agreed his “attorney has the right under this contract to ask the court to award 23 as much as 25% of [his] past-due benefits for representing [Plaintiff] in court.” (Id. at 1) The 24 agreement also indicated counsel may seek compensation under the Equal Access to Justice Act, and 25 the amount awarded would be refunded to Plaintiff from the fees awarded to counsel. (Id.) 26 On June 13, 2018, Plaintiff filed a complaint for review of the administrative decision denying 27 an application for Social Security benefits. (Doc. 1) The Court determined the administrative law 28 judge “failed to apply the proper legal standards and ignored significant, probative evidence in the 1 record.” (Doc. 21 at 1) Thus, the Court remanded the matter for further proceedings pursuant to 2 sentence four of 42 U.S.C. § 405(g) on February 28, 2020. (Id. at 11) Following the entry of judgment 3 in favor of Plaintiff (Doc. 22), the Court awarded $6,880.00 in attorney fees pursuant to the Equal 4 Access to Justice Act. (Doc. 24 at 1) 5 Upon remand, the administration issued a favorable decision, finding Plaintiff was “entitled to 6 monthly disability benefits from Social Security beginning October 2013.” (Doc. 27-1 at 2) In total, 7 Plaintiff was entitled to $103,640.60 in past-due benefits, from which the Commissioner withheld 8 $25,910.15 for “legal expenses and the work that was done before [Plaintiff] decided to take [his] case 9 to court.” (Doc. 27 at 3; Doc. 27-1 at 3) Mr. Pena received a direct deposit of $5,903.00 for fees on 10 November 18, 2020, which he placed in a trust account. (Doc. 27 at 3) 11 Counsel filed the motion now before the Court on December 1, 2020, seeking the withheld fees, 12 in the amount of $25,910.15. (Doc. 27) Mr. Pena indicated he would refund Plaintiff the amount of 13 fees previously awarded under the EAJA. (Id. at 1) Plaintiff was served with the motion and informed 14 of the right to file a response to indicate whether he agreed or disagreed with the requested fees within 15 fourteen days. (Id. at 1, 9) To date, Plaintiff has not filed an opposition, or otherwise responded to the 16 motion for fees. 17 II. Attorney Fees under § 406(b) 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 under [42 USC § 401, et seq] who was represented before the court by an attorney, the court may determine 21 and allow as part of its 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 22 entitled by reason of such 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 25 is unenforceable if it provides for fees exceeding the statutory amount. Gisbrecht, 535 U.S. at 807 26 (“Congress has provided one boundary line: Agreements are unenforceable to the extent that they 27 provide for fees exceeding 25 percent of the past-due benefits.”). 28 /// 1 III. Discussion and Analysis 2 District courts “have been deferential to the terms of contingency fee contracts § 406(b) cases.” 3 Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). However, the Court must review 4 contingent-fee arrangements “as an independent check, to assure that they yield reasonable results in 5 particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, the Court should consider “the character of 6 the representation and the results the representative achieved.” Id. at 808. In addition, the Court should 7 consider whether the attorney performed in a substandard manner or engaged in dilatory conduct or 8 excessive delays, and whether the fees are “excessively large in relation to the benefits received.” 9 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc). 10 Plaintiff entered into the contingent fee agreement in which he agreed to pay twenty-five 11 percent of any awarded past-due benefits. (Doc. 27-2 at 1-2) Counsel accepted the risk of loss in the 12 representation and expended a total of 38.35 hours while representing Plaintiff before the District 13 Court. (Doc. 27-3 at 1-2) Due to counsel’s work, the action was remanded further proceedings, and 14 Plaintiff received a favorable decision. For this, Mr. Pena requests a fee of $25,910.15, which is 25% 15 of the past-due benefits owed, and equal to the amount withheld by the administration from for the 16 payment of fees. (Doc. 27; see also Doc. 27-1 at 3) Because counsel intends to refund the $6,880.00 17 that was previously paid under the EAJA, the net cost to Plaintiff is $19,030.15. (See id. at 6) Finally, 18 although served with the motion and informed of the right to oppose the fee request (Doc. 27 at 1, 9), 19 Plaintiff did not file oppose the request and thereby indicates an implicit belief that the total amount 20 requested for attorney fees is reasonable 21 Significantly, there is no indication that counsel performed in a substandard manner or engaged 22 in severe dilatory conduct. Plaintiff was able to secure a remand for payment of benefits following the 23 appeal, including an award of past-due benefits. Finally, the fees requested do not exceed twenty-five 24 percent maximum permitted under 42 U.S.C. §406(b), the amount withheld by the administration for 25 payment of fees, or the amount agreed upon by counsel and Plaintiff. (See Doc. 27-2) 26 IV. Conclusion and Order 27 Based upon the tasks completed and results achieved following the remand for further 28 proceedings, the Court finds the fees sought by Mr. Pena are reasonable. Thus, the Court ORDERS: 1 1. Counsel’s motion for attorney fees pursuant to 24 U.S.C. §406(b) in the amount of 2 $25,910.15 is GRANTED; 3 2. The Commissioner shall pay the amount directly to Counsel, Jonathan Pena; and 4 3. Counsel SHALL refund $6,880.00 to Plaintiff Adolfo Lugo. 5 6 IT IS SO ORDERED. 7 Dated: December 19, 2020 /s/ Jennifer L. Thurston 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28