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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID JACOBSON, Case No. 1:18-cv-01439-SAB 12 Plaintiff, ORDER GRANTING PETITIONER’S MOTION FOR ATTORNEY FEES 13 v. PURSUANT TO 42 U.S.C. § 406(b) 14 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 20, 22, 24) 15 Defendant. 16 17 Plaintiff David Jacobson (“Plaintiff”) filed this action seeking judicial review of a final 18 decision of the Commissioner of Social Security (“Commissioner” or “Defendant”) denying his 19 application for disability benefits pursuant to the Social Security Act. Currently before the Court 20 is Petitioner Shellie Lott’s (“Counsel” or “Petitioner”), attorney for Plaintiff, motion for attorney 21 fees. 22 I. 23 BACKGROUND 24 Plaintiff filed the instant complaint challenging the denial of Social Security benefits on 25 October 17, 2018. (ECF No. 1.) On June 17, 2019, a stipulation for voluntary remand was filed. 26 (ECF No. 13.) The Court entered judgment pursuant to the stipulation in Plaintiff’s favor and the 27 action was remanded. (ECF Nos. 14, 15.) On August 21, 2019, a stipulation for an award of attorney fees and a bill of costs was filed. (ECF No. 16, 17.) Plaintiff was awarded attorney fees 1 of $4,426.14 at the stipulation of the parties and costs of $427.52 were taxed against the 2 Commissioner. (ECF Nos. 18, 19.) 3 On remand, the ALJ found that Plaintiff was disabled as of September 1, 2014, and past 4 benefits were awarded in the amount of $149,651.60.1 (ECF No. 20-2 at 1, 2.) The 5 Commissioner withheld $37,412.90 from the past-due benefit for attorney fees. This amount 6 equals 25 percent of the retroactive benefit award. (Id.) 7 On September 30, 2020, Plaintiff filed the instant motion for attorney fees pursuant to 42 8 U.S.C. § 406(b). (ECF No. 20.) On October 8, 2020, the Commissioner, as a de facto trustee for 9 Plaintiff, filed a response to Petitioner’s motion providing an analysis of the fee request. (ECF 10 No. 22.) Plaintiff has not objected to the request. On October 15, 2020, an order was filed 11 requiring Plaintiff to file supplemental briefing addressing the amount of attorney fees that are 12 being sought by the instant motion and the fee agreement. (ECF No. 23.) On October 20, 2020, 13 Plaintiff filed supplemental brief clarifying that counsel is requesting attorney fees in the gross 14 amount of $23,350.73 pursuant to 42 U.S.C. § 406(b)(1). (ECF No. 24.) 15 II. 16 LEGAL STANDARD 17 In relevant part, 42 U.S.C. § 406(b)(1)(A) provides that when a federal court “renders a 18 judgment favorable to a claimant . . . who was represented before the court by an attorney,” the 19 court may allow reasonable attorney fees “not in excess of 25 percent of the total of the past-due 20 benefits to which the claimant is entitled by reason of such judgment.” The payment of such 21 award comes directly from the claimant’s benefits. 42 U.S.C. § 406(b)(1)(A). 22 The Supreme Court has explained that a district court reviews a petition for section 23 406(b) fees “as an independent check” to assure that the contingency fee agreements between the 24 claimant and the attorney will “yield reasonable results in particular cases.” Gisbrecht v. 25 Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful 26 1 The award letter does not state the amount of back benefits awarded, but does state that twenty five percent, or 27 $37,412.90, was withheld from the past due benefits. (ECF No. 20-2 at 2.) This would make the total award $149,652.60 (4 x $37,412.90). 1 attorney-client fee agreements,” and is to look first at the contingent-fee agreement, and then test 2 it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009). The twenty- 3 five percent maximum fee is not an automatic entitlement, and courts are required to ensure that 4 the requested fee is reasonable. Gisbrecht, 535 U.S. at 808–09 (“§ 406(b) does not displace 5 contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts to 6 review for reasonableness fees yielded by those agreements”). Agreements seeking fees in 7 excess of twenty-five percent of the past-due benefits awarded are not enforceable. Crawford, 8 586 F.3d at 1148. The attorney has the burden of demonstrating that the fees requested are 9 reasonable. Gisbrecht, 535 U.S. at 808; Crawford, 586 F.3d at 1148. 10 In determining the reasonableness of an award, the district court should consider the 11 character of the representation and the results achieved. Gisbrecht, 535 U.S. at 800. Ultimately, 12 an award of section 406(b) fees is offset by an award of attorney fees granted under the EAJA. 13 Gisbrecht, 535 U.S. at 796. 14 The Ninth Circuit has identified several factors that a district court can examine under 15 Gisbrecht in determining whether the fee was reasonable. In determining whether counsel met 16 his burden to demonstrate that the requested fees are reasonable, the court may consider (1) the 17 standard of performance of the attorney in representing the claimant; (2) whether the attorney 18 exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of 19 past-due benefits; and (3) whether the requested fees are excessively large in relation to the 20 benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586 21 F.3d at 1151. 22 III. 23 DISCUSSION 24 The Court has conducted an independent check to insure the reasonableness of the 25 requested fees in relation to this action. Gisbrecht, 535 U.S. at 807. Here, the fee agreement 26 between Plaintiff and Petitioner provides “[i]f Attorney prevails before the Federal Court, and if 27 Claimant is subsequently awarded benefits by the Social Security Administration (“SSA”), 1 benefits.” (Employment Agreement, Contract for Federal Court Work, ECF No. 24-1.) Plaintiff 2 has been awarded benefits from February 2015 through March 2020 in the amount of 3 $149,651.60. (ECF No. 20-2.) In determining the reasonableness of the fees requested, the 4 Court is to apply the test mandated by Gisbrecht. 5 There is no indication that a reduction of fees is warranted for substandard performance. 6 Counsel is an experienced, competent attorney who secured a successful result for Plaintiff. 7 Although this action does involve five years of backpay, there is no indication that Counsel was 8 responsible for any substantial delay in the court proceedings. Plaintiff agreed to a 25 percent 9 fee at the outset of the representation and Petitioner is seeking payment of $23,350.73.2 The 10 amount sought is 15.6% of the past due benefits awarded.3 The $23,350.73 fee is not excessively 11 large in relation to the past-due award of $149,651.60. In making this determination, the Court 12 recognizes the contingent nature of this case and Counsel’s assumption of the risk of going 13 uncompensated. Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). 14 In support of the motion, Petitioner submits a log of the time spent in prosecuting this 15 action. (Schedule of Hours, ECF No. 20-4 at 2-3.) The log demonstrates that Petitioner spent 16 3.8 hours and counsel Chantal Harrington spent 17.9 hours, for a total of 21.7 hours, on this 17 action. (Id.) When considering the total amount requested by Petitioner, the fee request 18 translates to $1,076.07 per hour for attorney services in this action. In Crawford the appellate 19 court found that a fee of $875 and $902 per hour, for time of both attorneys and paralegals, was 20 not excessive. Crawford, 486 F.3d at 1152 (dissenting opinion). 21 Further, since Gisbrecht, courts note that reducing a fee request is dicey business and find 22 fee awards much higher than this to be reasonable. Williams v. Berryhill, No. EDCV 15-919- 23 KK, 2018 WL 6333695, at *2 (C.D. Cal. Nov. 13, 2018) (awarding fee request that provides an 24 hourly rate of $1,553.36 per hour); Coles v. Berryhill, No. EDCV 14-1488-KK, 2018 WL 25 3104502, at *3 (C.D. Cal. June 21, 2018) (effective hourly rate of $1,431.94 reasonable under 26 2 Defendant argues that Plaintiff cannot seek a net award of attorney fees under section 406(b). While the motion states that a net award is sought, it also states that counsel will reimburse Plaintiff for the amount of fees awarded 27 under the EAJA. Accordingly, the Court addresses the gross amount that is sought by the motion. 1 the circumstances); Palos v. Colvin, No. CV 15-04261-DTB, 2016 WL 5110243, at *2 (C.D. 2 Cal. Sept. 20, 2016) (fees sought translate to $1,546.39 per hour for attorney and paralegal 3 services); see also Villa v. Astrue, No. CIVS-06-0846 GGH, 2010 WL 118454, at *1, n.1 (E.D. 4 Cal. Jan. 7, 2010) (“In practice, the more efficient counsel is in court, the higher will be the 5 hourly fee amount represented in a § 406 fee award.”) 6 The Court finds that the requested fees are reasonable when compared to the amount of 7 work Petitioner performed in representing Plaintiff in court. Petitioner’s representation of the 8 claimant resulted in the action being remanded for further proceedings and ultimately benefits 9 were awarded. Counsel also submitted a detailed billing statement which supports her request. 10 (ECF No. 20-4.) 11 The award of Section 406(b) fees is offset by any prior award of attorney fees granted 12 under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. In this instance, Petitioner has 13 previously been awarded $4,4426.14 in EAJA fees and the award of fees under Section 406(b) 14 must be offset in that amount. 15 VI. 16 CONCLUSION AND ORDER 17 For the reasons stated above, the Court finds that the fees sought by Petitioner pursuant to 18 Section 406(b) are reasonable. Accordingly, IT IS HEREBY ORDERED that: 19 1. Petitioner’s motion for an award of attorney fees pursuant to Section 406(b) in the 20 amount of $23,350.73 is GRANTED; 21 2. Pursuant to counsel’s request, this amount shall be paid directly to Shellie Lott. 22 The Commissioner is to remit to Plaintiff the remainder of his withheld benefits; 23 and 24 / / / 25 / / / 26 / / / 27 / / / 1 3, Petitioner is ordered to refund $4,426.14 of the Section 406(b) fees awarded to 2 Plaintiff as an offset for EAJA fees previously awarded pursuant to 28 U.S.C. § 3 2412(d) 4 5 IT IS SO ORDERED. FA. ee 6 | Dated: _ October 26, 2020 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28