(SS) Smith 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 CURTIS E. SMITH, No. 2:18-cv-02757 AC 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 16 Defendant. 17 18 After receiving a final denial of an application for disability benefits under the Social 19 Security Act, plaintiff filed this action seeking judicial review under 42 U.S.C. § 405(g). ECF. 20 No. 1. Thereafter, the parties filed their respective briefs, and this court remanded for further 21 administrative proceedings under sentence four of 42 U.S.C. § 405(g). ECF No. 14, 17, 18-19. 22 Pursuant to the parties’ stipulation, this Court then ordered payment of attorney fees under the 23 Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d), in the amount of $2,500. ECF Nos. 24 20, 21. On remand, plaintiff was found to be disabled as of September 2014, resulting in an 25 award of past-due benefits. ECF Nos. 22-2, 22-3. 26 Now pending before the court is plaintiff’s July 12, 2021 motion for an award of 27 attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 22. On July 19, 2021, defendant filed a 28 response, asserting that defendant “is not in a position to either assent or object” to the fee 1 request. ECF No. 23 at 2. For the reasons set forth below, the motion will be granted. 2 I. REASONABLENESS OF FEE REQUEST 3 At the outset of the representation, plaintiff and his counsel entered into a contingent-fee 4 agreement. ECF No. 26. Pursuant to that agreement plaintiff’s counsel now seeks attorney’s fees 5 in the amount of $16,000.00, which represents less than 25% of the $113,186.52 in retroactive 6 disability benefits received by plaintiff on remand, for 14.4 hours of attorney time expended on 7 this matter. ECF Nos. 22-1 (fee agreement), 22-3 (award of benefits), 22-4 (billing statement). 8 Attorneys are entitled to fees for cases in which they have successfully represented social 9 security claimants: 10 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 11 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 12 the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security 13 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. 14 15 42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42 16 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing 17 party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) 18 (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The goal of fee awards under 19 § 406(b) is “‘to protect claimants against “inordinately large fees” and also to ensure that 20 attorneys representing successful claimants would not risk “nonpayment of [appropriate] fees.”’” 21 Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting Gisbrecht, 22 535 U.S. at 805). 23 The 25% statutory maximum fee is not an automatic entitlement, and the court must 24 ensure that the fee requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“406(b) does not 25 displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts 26 to review for reasonableness fees yielded by those agreements”). “Within the 25 percent 27 boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable 28 for the services rendered.” Id. at 807. “[A] district court charged with determining a reasonable 1 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 In determining whether the requested fee is reasonable, the court considers “‘the character 5 of the representation and the results achieved by the representative.’” Crawford, 586 F.3d at 1151 6 (quoting Gisbrecht, 535 U.S. at 808). In determining whether a reduction in the fee is warranted, 7 the court considers whether the attorney provided “substandard representation or delayed the 8 case,” or obtained “benefits that are not in proportion to the time spent on the case.” Id. Finally, 9 the court considers the attorney’s record of hours worked and counsel’s regular hourly billing 10 charge for non-contingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at 11 808); see also, E.D. Cal. R. 293(c)(1) (in fixing attorney’s fees the court considers “the time and 12 labor required”). Below, the court will consider these factors in assessing whether the fee 13 requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable. 14 Here, plaintiff’s counsel is an experienced attorney. ECF No. 22-12. There is no 15 indication that a reduction of fees is warranted due to any substandard performance by counsel. 16 There is also no evidence that plaintiff’s counsel engaged in any dilatory conduct resulting in 17 excessive delay; indeed, counsel achieved a stipulated remand. The court finds that $16,000.00, 18 which represents less than 25% of the $113,186.52 in past-due benefits paid to plaintiff, is not 19 excessive in relation to the benefits awarded. In making this determination, the court recognizes 20 the contingent fee nature of this case and counsel’s assumption of the risk of going 21 uncompensated in agreeing to represent plaintiff on such terms. See Crawford, 586 F.3d at 1152 22 (“[t]he attorneys assumed significant risk in accepting these cases, including the risk that no 23 benefits would be awarded or that there would be a long court or administrative delay in resolving 24 the cases”). Finally, counsel has submitted a detailed billing statement in support of the requested 25 fee. ECF No. 25-6. 26 Accordingly, for the reasons stated above, the court concludes that the fees sought by 27 counsel pursuant to § 406(b) are reasonable. 28 1 Il. OFFSET FOR EAJA FEES 2 An award of § 406(b) fees must be offset by any prior award of attorney’s fees granted 3 || under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. 4 | Here, plaintiffs attorney was previously awarded $2,500.00 in EAJA fees. See ECF No. 21. 5 || Counsel therefore must remit that amount to plaintiff. 6 Accordingly, IT IS HEREBY ORDERED that: 7 1. Plaintiffs Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 22), is 8 | GRANTED; 9 2. Counsel for plaintiff is awarded $16,000 in attorney’s fees under § 406(b); the 10 || Commissioner shall certify that amount to be paid to counsel from the funds previously withheld 11 | for the payment of such fees; and 12 3. Counsel for plaintiff is directed to remit to plaintiff the amount of $2,500.00 for EAJA 13 || fees previously paid to counsel by the Commissioner. 14 | DATED: July 28, 2021 ~ 15 AMhan—Chne ALLISON CLAIRE 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28