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

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 ZHANNA OGANESYAN, No. 2:17-cv-2541-EFB 11 Plaintiff, 12 v. ORDER 13 ANDREW SAUL, Commissioner of Social Security, 14 Defendant. 15 16 17 Pursuant to 42 U.S.C. § 406(b), counsel for plaintiff in the above-entitled action seeks an 18 award of attorney fees in the amount of $11,531.25, which is approximately 16.5 percent of past 19 benefits due to plaintiff. ECF No. 25. Plaintiff entered into a retainer agreement with his 20 attorney which provides that he would pay his counsel 25 percent of any past-due benefits won as 21 a result of the appeal in this case. Id. at 9-10. Counsel spent 29.4 professional hours on 22 plaintiff’s case, and counsel’s paralegal spent an additional 9 hours on the case. Id. at 21-22. 23 42 U.S.C. § 406(b)(1)(A) provides, in relevant part: 24 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 25 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 26 the total of the past-due benefits to which the claimant is entitled by reason of such judgment. 27 28 ///// 1 Rather than being paid by the government, fees under the Social Security Act are awarded 2 out of the claimant’s disability benefits. Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991), 3 receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 1991). 4 However, the 25 percent statutory maximum fee is not an automatic entitlement; the court also 5 must ensure that the requested fee is reasonable. Bisbrecht v. Barnhart, 535 U.S. 789, 808-09 6 (2002) (“We hold that § 406(b) does not displace contingent-fee agreements within the statutory 7 ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those 8 agreements.”). “Within the 25 percent boundary . . . the attorney for the successful claimant must 9 show that the fee sought is reasonable for the services rendered.” Id. at 807. A “court may 10 properly reduce the fee for substandard performance, delay, or benefits that are not in proportion 11 to the time spent on the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (en 12 banc). 13 After this court remanded for further proceedings, plaintiff was found disabled and 14 awarded past-due benefits in the amount of $70,125.00. ECF No. 25 at 15-19. Plaintiff’s 15 counsel’s request for $11,531.25, which is less than the statutory maximum, would constitute an 16 hourly rate of $392.22.1 Counsel did not delay these proceedings, and his representation of 17 plaintiff was not substandard. Indeed, he successfully represented his client’s interests before this 18 court. Based on the risk of loss taken in representing plaintiff, counsel’s experience in the field of 19 Social Security law, and the results achieved in this case, the court finds that fee request is 20 reasonable. See De Vivo v. Berryhill, No. 1:15-cv-1332-EPG, 2018 WL 4262007 (E.D. Cal. Sept. 21 6, 2018) (awarding fees at effective hourly range of $1,116.26); Jamieson v. Astrue, No. 22 1:09cv0490 LJO DLB, 2011 WL 587096 (E.D. Cal. Feb. 9, 2011) (finding fee at effective hourly 23 rate of $1,169.49 reasonable); Naddour v. Colvin, No.: 13-CV-1407-BAS, 2016 WL 4248557 24 (S.D. Cal. Aug. 11, 2016) (awarding fee at effective hourly rate of $1,063); Kazanjian v. Astrue, 25 No. 09 civ. 3678 (BMC), 2011 WL 2847439, at *1-2 (E.D.N.Y. July 15, 2011) (finding that 26 ///// 27 28 1 This amount does not account for the 2.4 hours of paralegal time. 2: Ves TB MMVUETIOCTI LO PI Ae AY VM VI 1 | counsel “performed well, diligently, and with unusual efficiency,” and awarding fee at hourly rate 2 || of $2,100). 3 Counsel concedes that the $11,531.25 award should be offset in the award for fees 4 || previously granted under the Equal Access to Justice Act (“EAJA”). ECF No. 25 at 5; see ECF 5 || No. 24. Counsel states that upon receipt of a fee award in the amount of $11,531.25, he will 6 || refund plaintiff the sum of $6,500.00 previously awarded under the EAJA. Id. See Gisbrecht v. 7 | Barnhart, 535 U.S. 789, 796 (2002) (holding that where attorney’s fees are awarded under both 8 || EAJA and § 406(b), the attorney must refund the smaller of the two awards to the plaintiff). 9 Accordingly, it is hereby ORDERED that: 10 1. Plaintiff’s counsel’s motion for attorney’s fees (ECF No. 25) is granted; 11 2. Plaintiffs counsel is awarded $11,531.25 in fees pursuant to 42 U.S.C. § 406(b); and 12 3. Upon receipt of the $11,531.25 award, counsel shall refund to plaintiff the sum of 13 || $6,500.00 previously awarded under the EAJA. 14 | DATED: October 5, 2020. 15 Doolin Afb In 4 16 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28