(SS) Sahyoun 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 VICTOR J. SAHYOUN, No. 2:18-cv-0576-EFB 12 Plaintiff, 13 v. ORDER 14 KILOLO KIJAKAZI, 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 $28,000. ECF No. 31. Plaintiff was awarded past due 20 benefits, and he has previously entered into a retainer agreement with his attorneys 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. 31-4. The amount requested is slightly less than 25% of the past 23 due benefits awarded to plaintiff. ECF Nos. 31, 31-3 (plaintiff was awarded a total of $120,525 24 from which the Social Security Administration withheld $30,016.88 for attorney fees1). 25 26 1 Counsel has not provided a copy of the Notice of Award because the Social Security Administration has yet to provide one to counsel. ECF No. 31-3. However, counsel’s paralegal 27 declares that an Administration representative informed her over the phone on October 29, 2021 that $90,508.12 had been paid to Mr. Sahyoun and $30,016.88 withheld for attorney fees. Id. 28 The Commissioner has not filed a response to the motion for attorney fees. 1 Plaintiff’s attorney spent 20.4 hours litigating the case, and his paralegal spent 2.3 hours on the 2 case. ECF No. 31-5. 3 42 U.S.C. § 406(b)(1)(A) provides, in relevant part: 4 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 5 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 6 the total of the past-due benefits to which the claimant is entitled by reason of such judgment. 7 8 Rather than being paid by the government, fees under the Social Security Act are awarded 9 out of the claimant’s disability benefits. Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991), 10 receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 1991). 11 However, the 25 percent statutory maximum fee is not an automatic entitlement; the court also 12 must ensure that the requested fee is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 13 (2002) (“We hold that § 406(b) does not displace contingent-fee agreements within the statutory 14 ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those 15 agreements.”). “Within the 25 percent boundary . . . the attorney for the successful claimant must 16 show that the fee sought is reasonable for the services rendered.” Id. at 807. A “court may 17 properly reduce the fee for substandard performance, delay, or benefits that are not in proportion 18 to the time spent on the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (en 19 banc). 20 After this court remanded for further proceedings, plaintiff was found disabled and 21 awarded past-due benefits. ECF No. 31-2. The Commissioner withheld from that award 22 $30,016.88, which represented 25 percent of the award, for attorney fees. Id. $28,000, the 23 amount requested by counsel here, represents an hourly rate of $1,372.54 if only counsel’s hours 24 are considered, or of $1,233.48 for both attorney and paralegal hours. Counsel did not delay 25 these proceedings, and their representation of plaintiff was not substandard. Indeed, they 26 successfully represented their client’s interests before this court. Based on the risk of loss taken 27 in representing plaintiff, counsel’s experience in the field of Social Security law, and the results 28 achieved in this case, the court finds that fee request is reasonable. See De Vivo v. Berryhill, No. 1 }} 1:15-cv-1332-EPG, 2018 WL 4262007 (E.D. Cal. Sept. 6, 2018) (awarding fees at effective 2 | hourly range of $1,116.26); Jamieson v. Astrue, No. 1:09cv0490 LJO DLB, 2011 WL 587096 3 | (ED. Cal. Feb. 9, 2011) (finding fee at effective hourly rate of $1,169.49 reasonable); Naddour v. 4 | Colvin, No.: 13-CV-1407-BAS, 2016 WL 4248557 (S.D. Cal. Aug. 11, 2016) (awarding fee at 5 || effective hourly rate of $1,063); Kazanjian v. Astrue, No. 09 civ. 3678 (BMC), 2011 WL 6 || 2847439, at *1-2 (E.D.N.Y. July 15, 2011) (finding that counsel “performed well, diligently, and 7 || with unusual efficiency,” and awarding fee at hourly rate of $2,100). 8 Counsel acknowledges that the award must be offset by the fees previously awarded under 9 || the Equal Access to Justice Act (““EAJA”). ECF No. 31. Accordingly, the court will include in 10 || its ruling an order directing him to refund the EAJA fees previously awarded — $4,200.00 — to 11 | plaintiff. ECF No. 31. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (holding that where 12 || attorney’s fees are awarded under both EAJA and § 406(b), the attorney must refund the smaller 13 || of the two awards to the plaintiff). 14 Accordingly, it is hereby ORDERED that: 15 1. The court finds the motion suitable for determination on the pleadings, and therefore 16 || the hearing set for December 29, 2021 is vacated. 17 2. Plaintiff's counsel’s motion for attorney’s fees (ECF No. 31) is granted. 18 3. Plaintiffs counsel is awarded a total of $28,000.00 in fees pursuant to 42 U.S.C. 19 | § 406(b). 20 4. Upon receipt of the $28,000 award, counsel shall refund to plaintiff the sum of 21 || $4,200.00 previously awarded under the EAJA. 22 | DATED: December 22, 2021. 24 EDMUND F. BRENNAN 35 UNITED STATES MAGISTRATE JUDGE 26 27 28