(SS) Lopez v. Commissioner of Social Security ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BLANCA ESTELA LOPEZ, Case No. 1:17-cv-01576-JDP (SS) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY FEES UNDER 42 U.S.C. 13 v. § 406(b) 14 COMMISSIONER OF SOCIAL ECF No. 27 SECURITY, 15 Defendant. 16 17 18 Plaintiff’s counsel moves for an award of attorney fees under 42 U.S.C. § 406(b). ECF 19 No. 27. Plaintiff entered into a contingent fee agreement that provided she would pay counsel 20 twenty-five percent of any award of past-due benefits. ECF No. 27-5 at 2-3. After this court 21 remanded this action for further proceedings, plaintiff was found disabled and awarded $108,370 22 in past-due benefits. ECF No. 23; ECF No. 27-5 at 7-12. Counsel now seeks attorney’s fees in 23 the amount of $27, 092.50, which is equal to twenty-five percent of total past-due benefits that 24 plaintiff was awarded, with a credit to plaintiff for the fees previously awarded under the Equal 25 Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), in the amount of $7,000.00. ECF No. 27; 26 see also ECF No. 26. 27 An attorney is entitled to reasonable fees for successfully representing social security 28 claimants in district court. 1 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an 2 attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent 3 of the total of the past-due benefits to which the claimant is entitled by reason of such judgment. 4 5 42 U.S.C. § 406(b)(1)(A). Rather than being paid by the government, fees under section 6 406(b) are paid by the claimant from the awarded past-due benefits. Crawford v. Astrue, 586 7 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 8 (2002)). The twenty-five percent statutory maximum fee is not an automatic entitlement; the 9 court must ensure that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808-09 (“We hold 10 that § 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 11 406(b) instructs courts to review for reasonableness fees yielded by those agreements.”). In 12 assessing whether a fee is reasonable, the court should consider “the character of the 13 representation and the results the representative achieved.” Id. at 808. A “court may properly 14 reduce the fee for substandard performance, delay, or benefits that are not in proportion to the 15 time spent on the case.” Crawford, 586 F.3d at 1151. 16 The court finds that the requested fees are reasonable. Counsel’s billing records reflect a 17 total of 36.10 hours of attorney time on this case. ECF No. 27-5 at 5. Counsel’s request for 18 $27,092.50, which is the equivalent of the statutory maximum, would constitute an hourly rate of 19 approximately $750 for attorney services. Counsel did not engage in dilatory conduct or perform 20 in a substandard manner. Indeed, counsel’s representation resulted in this matter being remanded 21 for further proceedings, which resulted in a favorable decision and an award of benefits. ECF 22 Nos. 23, 24; ECF No. 27-5 at 7-12. Given counsel’s experience, the result obtained in this case, 23 and the risk of loss in representing plaintiff, the court finds the hourly rate reasonable. See, e.g., 24 De Vivo v. Berryhill, No. 1:15-cv-1332-EPG, 2018 WL 4262007 (E.D. Cal. Sept. 6, 2018) 25 (awarding fees at effective hourly range of $1,116.26); Jamieson v. Astrue, No. 1:09-cv-0490 26 LJO DLB, 2011 WL 587096 (E.D. Cal. Feb. 9, 2011) (finding fee at effective hourly rate of 27 $1,169.49 reasonable); Naddour v. Colvin, No. 13-CV-1407-BAS (WVG), 2016 WL 4248557 28 (S.D. Cal. Aug. 11, 2016) (awarding fee at effective hourly rate of $1,063); Palos v. Colvin, No. 1 | CV 15-04261-DTB, 2016 WL 5110243 (C.D. Cal. Sept. 20, 2016) ) (finding fee at effective 2 | hourly rate of $1,546.39 reasonable). 3 Accordingly, it is hereby ORDERED that: 4 1. Plaintiffs counsel’s motion for attorney’s fees, ECF No. 27, is granted. 5 2. Plaintiffs counsel is awarded $27,092.50 in fees pursuant to 42 U.S.C. § 406(b). 6 3. Plaintiffs counsel is directed to reimburse plaintiff the sum of $7,000.00 for 7 previously paid EAJA fees pursuant to 28 U.S.C. § 2412(d). 8 9 IT IS SO ORDERED. 10 ( 1 Ow — Dated: _ November 7, 2023 qe 11 JEREMY D. PETERSON 10 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28