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

1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF CALIFORNIA 6 SARAH NICHOLE RAMIREZ, ) Case No.: 1:19-cv-01127-LJO-BAM ) 7 Plaintiff, ) FINDINGS AND RECOMMENDATIONS ) REGARDING MOTION FOR ATTORNEYS’ FEES 8 v. ) PURSUANT TO 42 U.S.C. § 406(b) 9 ANDREW M. SAUL,1 Commissioner of ) ) (Doc. No. 14) ) 10 Social Security, ) FOURTEEN (14) DAY DEADLINE ) 11 Defendant. 12 Pending before the Court is a motion for attorneys’ fees pursuant to 42 U.S.C. § 406(b) filed by 13 David F. Chermol, Esq., counsel for Plaintiff Sarah Nichole Ramirez (“Plaintiff”). (Doc. No. 14.) The 14 Commissioner of Social Security (the “Commissioner”) has filed a response to the motion analyzing 15 the fee request but taking no position as to its reasonableness. (Doc. No. 16.) Counsel for Plaintiff has 16 filed a reply in support of the motion. (Doc. No. 17.) 17 The matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local 18 Rule 302(c)(15). Having reviewed the motion and its supporting documentation, as well as the case file, 19 the Court will recommend that the motion be granted. 20 I. Relevant Background 21 Chermol & Fishman, LLC entered into a written contingent fee agreement with Plaintiff dated 22 October 12, 2018. (Doc. No. 14-2.) The fee agreement provided, in relevant part, that “[i]f my claim(s) 23 is favorably decided after an appeal to the Appeals Council, I will pay the firm/my representative a fee 24 equal to twenty five percent (25%) of all past due benefits which are awarded on my account[.]” (Id.) 25 On August 15, 2019, Plaintiff filed this action seeking judicial review of the Commissioner’s 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 denial of benefits. (Doc. No. 1.) On December 2, 2019, the Court issued an order reversing the 2 Commissioner’s denial of benefits and ordering remand pursuant to sentence four of 42 U.S.C. § 3 405(g). (Doc. No. 10.) On January 8, 2020, the Court approved the parties’ stipulation to award 4 Plaintiff $1,224.00 in attorneys’ fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. 5 § 2412. (Doc. No. 13.) On remand, the Commissioner granted Plaintiff’s application for benefits and 6 issued a notice indicating that Plaintiff was entitled to receive $25,560.59 in retroactive benefits. (Doc. 7 No. 14-1.) 8 In the present Motion, Plaintiff’s counsel asks the Court to award attorneys’ fees in the amount 9 of $6,390.15. (Doc. No. 14.) Plaintiff’s counsel contends this fee is appropriate in light of the services 10 rendered and results achieved, as counsel was instrumental in obtaining a favorable result. (Doc. No. 14 11 at 3.) The Commissioner filed a statement in response to the Motion providing an analysis of the fee 12 request but taking no position regarding its reasonableness. (Doc. No. 16.) 13 II. Legal Standard 14 An attorney may seek an award of fees for representation of a Social Security claimant who is 15 awarded benefits: 16 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 17 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 18 judgment. . .. 19 42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) 20 controls fees awarded for representation of Social Security claimants). A contingency fee agreement is 21 unenforceable if it provides for fees exceeding twenty-five percent of past-due benefits. Gisbrecht, 22 supra, 535 U.S. at 807. 23 III. Discussion and Analysis 24 District courts “have been deferential to the terms of contingency fee contracts § 406(b) cases.” 25 Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). However, the Court must review 26 contingent-fee arrangements “as an independent check, to assure that they yield reasonable results in 27 particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, the Court should consider “the character of 28 the representation and the results the representative achieved.” Id. at 808. In addition, the Court should 1 consider whether the attorney performed in a substandard manner or engaged in dilatory conduct or 2 excessive delays, and whether the fees are “excessively large in relation to the benefits received.” 3 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc). 4 In this case, after carefully considering the fee agreement and the applicable law, the Court 5 finds Plaintiff’s counsel’s requested fees to be reasonable. In support of the motion, Plaintiff’s counsel 6 attached a written fee agreement which provided for a contingent fee of twenty-five percent of any 7 awarded retroactive benefits. (Doc. No. 14-2.) Plaintiff’s counsel accordingly accepted the risk of loss 8 in the representation. Plaintiff’s counsel additionally expended a total of six hours of attorney time 9 while representing Plaintiff before the District Court. (Doc. No. 14-3.) The requested fee amount 10 represents approximately twenty-five percent of past-due benefits and is within the applicable 11 maximum. As a result of counsel’s work, the matter was remanded for further proceedings before an 12 Administrative Law Judge, who issued a fully favorable decision and awarded Plaintiff benefits. 13 Plaintiff’s counsel provided a copy of the motion for attorneys’ fees to Plaintiff. (Doc. No. 14 14 at 4.) Although served with the motion, Plaintiff did not challenge the requested fees which attests to 15 their reasonableness. Likewise, the Commissioner, in its advisory capacity, also declined to dispute the 16 propriety of the amount of the fees requested by Plaintiff’s counsel. (Doc. No. 16.) 17 Additionally, there is no indication counsel performed in a substandard manner or engaged in 18 severe dilatory conduct to the extent that a reduction in fees is warranted. To the contrary, Plaintiff 19 was able to secure a fully favorable decision and remand for further proceedings, including an award 20 of past-due benefits. Accordingly, the Court finds the fees sought by counsel are reasonable in light 21 the results achieved in this action, and the amount does not exceed twenty-five percent maximum 22 permitted under 42 U.S.C. § 406(b). 23 IV. Conclusion and Recommendations 24 Based upon the foregoing, it is HEREBY RECOMMENDED that: 25 1. Counsel for Plaintiff’s motion for attorneys’ fees under 42 U.S.C. § 406(b) (Doc. No. 26 14) be GRANTED; 27 2. David F. Chermol, Esq., counsel for Plaintiff, be awarded $6,390.15 in attorneys’ fees 28 pursuant to 42 U.S.C. § 406(b); and 1 3. Counsel for Plaintiff be directed to compensate Plaintiff in the amount of $1,224.00 for 2 fees previously awarded pursuant to the EAJA. 3 These Findings and Recommendations will be submitted to the United States District Judge 4 assigned to the case pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen (14) 5 days after being served with these Findings and Recommendations, any party may file written 6 objections with the Court and serve a copy on all parties. The document should be captioned 7 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 8 failure to file objections within the specified time may result in the waiver of the “right to challenge 9 the magistrate’s factual findings” on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 10 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 12 IT IS SO ORDERED. 13 Dated: August 11, 2020 /s/ Barbara A. McAuliffe _ 14 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28