(SS) Hunt v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KATHRANE MARIE HUNT, No. 2:19-cv-00421 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 of the Social Security Act (“the Act”). July 21, 2020 the 21 court granted plaintiff’s motion for summary judgment, denied the Commissioner’s cross-motion 22 for summary judgment, and remanded the action to the Commissioner with instructions to award 23 benefits. ECF No. 20. 24 Now pending before the court is plaintiff’s May 26, 2021 motion for an award of 25 attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 26. On June 4, 2021, defendant filed a 26 response asserting that defendant “is not in a position to either assent or object” to the fee request. 27 ECF No. 28 at 2. For the reasons set forth below, the motion will be granted. 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. 26-3. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s 4 fees in the amount of $11,797.50, which represents 15.64% (less than the contracted for 25%) of 5 the $75,454.75in retroactive disability benefits received by plaintiff on remand, for 12.1 hours of 6 attorney time expended on this matter. ECF Nos. 28 at 2, 4 n.2. 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. ECF No. 26-1. There is no indication that a reduction of fees is warranted due to any 15 substandard performance by counsel. There is also no evidence that plaintiff’s counsel engaged 16 in any dilatory conduct resulting in excessive delay. The court finds that the $11,797.50 fee, 17 which represents less than the contracted for 25% of the $75,454.75 in past-due benefits paid to 18 plaintiff, is not excessive in relation to the benefits awarded. In making this determination, the 19 court recognizes the contingent fee nature of this case and counsel’s assumption of the risk of 20 going uncompensated in agreeing to represent plaintiff on such terms. See Crawford, 586 F.3d 21 at 1152 (“[t]he attorneys assumed significant risk in accepting these cases, including the risk that 22 no benefits would be awarded or that there would be a long court or administrative delay in 23 resolving the cases”). Finally, counsel has submitted a detailed billing statement in support of the 24 requested fee. ECF No. 26-4. 25 Accordingly, for the reasons stated above, the court concludes that the fees sought by 26 counsel pursuant to § 406(b) are reasonable. 27 II. OFFSET FOR EAJA FEES 28 An award of § 406(b) fees must be offset by any prior award of attorney’s fees granted 1 || under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. 2 | Here, plaintiffs attorney was previously awarded $2,485.05 in EAJA fees. See ECF No. 23. 3 || Counsel therefore must remit that amount to plaintiff. 4 Accordingly, IT IS HEREBY ORDERED that: 5 1. Plaintiffs Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 26), is 6 | GRANTED; 7 2. Counsel for plaintiff is awarded $11,797.50 in attorney’s fees under § 406(b); the 8 || Commissioner shall certify that amount to be paid to counsel from the funds previously withheld 9 || for the payment of such fees; and 10 3. Counsel for plaintiff is directed to remit to plaintiff the amount of $2,485.05 for EAJA 11 || fees previously paid to counsel by the Commissioner. 12 | DATED: July 6, 2021 ~ 13 ththienr—Chnp—e_ ALLISON CLAIRE 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28