(SS) Janet L. Barker v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JANET LYNN BARKER, Case No. 1:19-cv-01385-HBK 12 Plaintiff, ORDER GRANTING MOTION FOR ATTORNEY'S FEES1 13 v. (Doc. No. 26) 14 KILOLO KIJAKAZI, ACTING COMMISSIONER OF SOCIAL ORDER FOR CLERK TO MAIL A COPY OF 15 SECURITY, ORDER TO PLAINTIFF 16 Defendant. 17 18 Young Chul Cho (“Counsel”) of the Law Offices of Lawrence D. Rohlfing, attorney for 19 Janet Lynn Barker (“Plaintiff”), filed a motion seeking attorney’s fees pursuant to 42 U.S.C. § 20 406(b) on August 10, 2022. (Doc. No. 26). Plaintiff was served with the motion and advised she 21 had 14 days to object. (Id. at 2, 23). No opposition has been filed as of the date of this Order. 22 (See docket). For the reasons set forth below, the motion for attorney’s fees is granted in the 23 amount of $26,576.00 subject to an offset of $4,300.00 in fees previously awarded on November 24 12, 2021, under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). (Doc. No. 25). 25 /// 26 1 Both parties have consented to the jurisdiction of a magistrate judge in accordance with 28 U.S.C. 27 §636(c)(1). (Doc. No. 17). 28 1 I. BACKGROUND 2 On October 2, 2019, Plaintiff brought the underlying action seeking judicial review of a 3 final administrative decision denying Plaintiff’s claim for disability insurance benefits under the 4 Social Security Act. (Doc. No. 1). On September 29, 2021, the Court reversed the 5 Commissioner’s decision, remanded for further proceedings pursuant to sentence four of 42 6 U.S.C. § 405(g) and judgment was entered. (Doc. Nos. 21-22). The Court entered an award of 7 $4,300 for attorney fees under the Equal Access to Justice Act (“EAJA”) on November 12, 2021. 8 (Doc. Nos. 25). 9 On remand, the Commissioner found Plaintiff disabled since May 2, 2011. (Doc. No. 26- 10 2). Plaintiff was awarded $106,306.122 in retroactive benefits. (Doc. No. 22-3 at 2). On August 11 10, 2022, Counsel filed this motion for attorney’s fees in the amount of $26,576.00, with an offset 12 of $4,300.00 for EAJA fees already awarded. (Doc. No. 26). Counsel argues these fees are 13 reasonable because the contingency fee agreement, which Plaintiff signed, permits Counsel to 14 retain 25% of the past-due benefits. (Doc. No. 22 at 6; Doc. No. 26-1). Defendant did not file 15 any response to the fee requested and the time to do so has expired. (See docket). 16 II. APPLICABLE LAW 17 Attorneys may seek a reasonable fee under the Social Security Act for cases in which they 18 have successfully represented social security claimants. Section 406(b) allows: 19 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 20 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 21 the total of the past-due benefits to which the claimant is entitled . . .. 22 23 42 U.S.C. § 406(b)(1)(A). Counsel for a plaintiff may recover attorneys’ fees under both 42 24 U.S.C. § 406(b) and EAJA. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). Counsel, however, 25 must refund to the plaintiff the amount of the smaller fee. Id. 26 27 2 Plaintiff did not provide a citation to this amount in the notice of award; thus, the Court presumes the number was calculated by multiplying the 25% of past due benefits amount by four ($26,576.53 x 4). (See 28 Doc. No. 26-3 at 5). 1 Fees in social security cases “are usually set in contingency-fee agreements and are 2 payable from past-due benefits awarded to the claimant.” Biggerstaff v. Saul, 840 F. App'x 69, 70 3 (9th Cir. 2020). The fee is not borne by the Commissioner. Crawford v. Astrue, 586 F.3d 1142, 4 1147 (9th Cir. 2009). This provision’s purpose is in part to “ensure that attorneys representing 5 successful claimants would not risk nonpayment of [appropriate] fees.” Gisbrecht, 535 U.S. at 6 805 (internal quotations omitted). When weighing the adequacy of requested attorney’s fees, 7 Courts should respect “the primacy of lawful attorney-client fee agreements.” Id. at 793. 8 Counsel still bears the burden, however, of showing the requested fees are reasonable. Id. at 807. 9 In determining reasonableness, the court may consider the experience of the attorney, the results 10 they achieved, and whether there is evidence the attorney artificially increased the hours worked 11 or the hourly rate charged. Id. at 807-808; Crawford, 586 F.3d at 1151. Any 406(b) award is 12 offset by attorney fees granted under the EAJA. Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 13 1215, 1219 (9th Cir. 2012) 14 III. ANALYSIS 15 Here, Plaintiff signed a fee agreement providing, “the fee for successful prosecution of 16 this matter is 25% of the backpay awarded…” (Doc. No. 26-1). Counsel was ultimately 17 successful in securing $106,306.12 in retroactive benefits for Plaintiff. In support of this motion, 18 Counsel submitted a time sheet indicating the firm expended 20.4 hours in attorney time and 2.3 19 hours in paralegal time on this matter. (Doc. No. 22 at 16; Doc. No. 26-4). The time Counsel 20 spent in successfully attaining Plaintiff’s benefits does not appear inflated. 21 Counsel’s request for $26,576.00 in fees for 22.7 hours of work results in an hourly rate of 22 $1,170.75 for the combined attorney and paralegal work. In 2008, the Ninth Circuit found similar 23 hourly rates reasonable in social security contingency fee arrangements. Crawford, 586 F.3d at 24 1153 (explaining that the majority opinion found reasonable effective hourly rates equaling 25 $519.00, $875.00, and $902.00) (J. Clifton, concurring in part and dissenting in part). More 26 recently, this Court approved an hourly rate of $1,025.22 for paralegal and attorney time. 27 Mayfield v. Comm’r of Soc. Sec., No. 1:16-cv-01084-SAB, ECF No. 24, at 5 (E.D. Cal. March 19, 28 2020). Attorney hourly rates inevitably rise as their experience increases, and Counsel has been 1 | practicing social security law since 1997. (Doc. No. 26 at 22, 415). The $26,576.00 sought by 2 | Counsel is slightly below the amount stipulated to in the contingency agreement. Based on the 3 | foregoing, the Court finds the requested fees of $26,576.00 are reasonable. Gisbrecht, 535 US. 4 | at 807-08. 5 An award of attorney’s fees pursuant to 406(b) in the amount of $26,576.00 is, therefore, 6 | appropriate. An award of § 406(b) fees, however, must be offset by any prior award of attorneys’ 7 | fees granted under the EAJA. 28 U.S.C. § 2412(d); Gisbrecht, 535 U.S. 796. As Plaintiff was 8 | previously awarded $4,300 in fees pursuant to the EAJA, Counsel shall refund this amount to 9 | Plaintiff. 10 Accordingly, it is ORDERED: 11 1. Plaintiff's Counsel’s motion for an award of attorney’s fees is GRANTED (Doc. No. 12 26). 13 2. Plaintiff’s Counsel is awarded $26,576.00 in attorney fees pursuant to 42 U.S.C. § 14 406(b). 15 3. Counsel shall refund to Plaintiff $4,300 of the § 406(b) fees awarded as an offset for 16 | the EAJA fees previously awarded pursuant to 28 U.S.C. § 2412(d) (Doc. No. 25). 17 4. The Clerk of the Court is respectfully directed to serve a copy of this Order on Plaintiff 18 | Janet Lynn Barker, 521 Randall St., Ridgecrest, CA, 93555. 19 20 Dated: _ September 29, 2022 Mibu □ Zh. foareh = 21 HELENA M. DARCHLRUCHTA 09 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28