(SS) Westfall 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 GLENN A. WESTFALL, No. 2:19-cv-0957 DB 12 Plaintiff, 13 v. ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security,1 15 16 Defendant. 17 18 Plaintiff brought this action seeking judicial review of a final administrative decision 19 denying an application for Disability Insurance Benefits under Title II of the Social Security Act.2 20 On September 17, 2020, the court granted plaintiff’s motion for summary judgment and 21 remanded this matter for the award of benefits. (ECF No. 17.) 22 On May 25, 2021, counsel for plaintiff filed a motion for an award of attorney’s fees 23 pursuant to 42 U.S.C. § 406(b). (ECF No. 23.) At the outset of the representation, plaintiff and 24 25 1 After the filing of this action Kilolo Kijakazi was appointed Acting Commissioner of Social Security and has, therefore, been substituted as the defendant. See 42 U.S.C. § 405(g) (referring 26 to the “Commissioner’s Answer”); 20 C.F.R. § 422.210(d) (“the person holding the Office of the Commissioner shall, in his official capacity, be the proper defendant”). 27 2 Both parties have previously consented to Magistrate Judge jurisdiction over this action 28 1 plaintiff’s counsel entered into a contingent-fee agreement. (ECF No. 23-1.) Pursuant to that 2 agreement plaintiff’s counsel now seeks attorney’s fees in the amount of $20,225.25, which 3 represents 25% of the retroactive disability benefits received by plaintiff on remand. (Pl.’s Mot. 4 (ECF No. 23-2) at 3.) Defendant did not file an objection, but instead an “analysis of the 5 requested fee to assist this Court.” (ECF No. 24 at 2.) 6 Attorneys are entitled to fees for cases in which they have successfully represented social 7 security claimants. 8 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 9 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 10 the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security 11 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. 12 13 42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42 14 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing 15 party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) 16 (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). Although an attorney fee 17 award pursuant to 42 U.S.C. § 406(b) is not paid by the government, the Commissioner has 18 standing to challenge the award. Craig v. Sec’y Dep’t of Health & Human Servs., 864 F.2d 324, 19 328 (4th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807. The goal of fee 20 awards under § 406(b) is to provide adequate incentive to attorneys for representing claimants 21 while ensuring that the usually meager disability benefits received are not greatly depleted. 22 Cotter v. Bowen, 879 F.2d 359, 365 (8th Cir. 1989). 23 The 25% statutory maximum fee is not an automatic entitlement, and the court must 24 ensure that the fee actually requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“[Section] 25 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) 26 instructs courts to review for reasonableness fees yielded by those agreements.”). “Within the 25 27 percent boundary . . . the attorney for the successful claimant must show that the fee sought is 28 reasonable for the services rendered.” Id. at 807. “[A] district court charged with determining a 1 reasonable fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee 2 arrangements,’ ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 3 Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793 & 808). 4 The Supreme Court has identified five factors that may be considered in determining 5 whether a fee award under a contingent-fee arrangement is unreasonable and therefore subject to 6 reduction by the court: (1) the character of the representation; (2) the results achieved by the 7 representative; (3) whether the attorney engaged in dilatory conduct in order to increase the 8 accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the 9 amount of time counsel spent on the case; and (5) the attorney’s record of hours worked and 10 counsel’s regular hourly billing charge for noncontingent cases. Crawford, 586 F.3d at 1151-52 11 (citing Gisbrecht, 535 U.S. at 808). Below, the court will consider these factors in assessing 12 whether the fee requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable. 13 Here, there is no indication that a reduction of fees is warranted due to any substandard 14 performance by counsel. Rather, plaintiff’s counsel is an experienced attorney who secured a 15 successful result for plaintiff. There is also no evidence that plaintiff’s counsel engaged in any 16 dilatory conduct resulting in excessive delay. The court finds that the $20,225.25 fee based on 17 38.77 hours of attorney time, which represents 25% of the past-due benefits paid to plaintiff, is 18 not excessive in relation to the benefits awarded. (ECF No. 23-5.) In making this determination, 19 the 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 Hearn v. Barnhart, 21 262 F. Supp.2d 1033, 1037 (N.D. Cal. 2003). 22 Accordingly, for the reasons stated above, the court concludes that the fees sought by 23 counsel pursuant to § 406(b) are reasonable. See generally Azevedo v. Commissioner of Social 24 Security, No. 1:11-cv-1341 AWI SAB, 2013 WL 6086666, at *2 (E.D. Cal. Nov. 19, 2013) 25 (granting petition pursuant to 406(b) for $17,893.75 in attorney’s fees); Coulter v. Commissioner 26 of Social Security, No. 1:10-cv-1937 AWI JLT, 2013 WL 5969674, at *2 (E.D. Cal. Nov. 8, 27 2013) (recommending award of $15,084.23 in attorney’s fees pursuant to 406(b)); Taylor v. 28 Astrue, No. 1:06-cv-00957-SMS, 2011 WL 836740, at *2 (E.D. Cal. Mar. 4, 2011) (granting 1 petition pursuant to 406(b) for $20,960 in attorneys’ fees); Jamieson v. Astrue, No. 1:09cv0490 2 LJO DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011) (recommending award of $34,500 in 3 attorney fees pursuant to 406(b)). 4 An award of § 406(b) fees is, however, normally offset by any prior award of attorney’s 5 fees granted under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 6 U.S. at 796. Here, plaintiff’s counsel was previously awarded $8,000 in EAJA fees and the award 7 under § 406(b) must be offset by that amount. (ECF No. 22.) 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff’s May 25, 2021 motion for attorney fees under 42 U.S.C. § 406(b), (ECF No. 10 23), is granted; 11 2. Counsel for plaintiff is awarded $20,225.25 in attorney fees under § 406(b). The 12 Commissioner is directed to pay the fee forthwith and remit to plaintiff the remainder any 13 withheld benefits; and 14 3. Upon receipt of the $20,225.25 in attorney fees pursuant to § 406(b), counsel shall 15 reimburse plaintiff in the amount of $8,000 previously paid by the government under the EAJA. 16 DATED: November 5, 2021 /s/ DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 DLB:6 DB\orders\orders.soc sec\westfall0957.406(b).ord 22 23 24 25 26 27 28