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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 AUGUSTIN YBARRA PEREZ, Case No. 1:21-cv-00300-SAB 12 Plaintiff, ORDER GRANTING COUNSEL’S MOTION FOR ATTORNEY FEES PURSUANT TO 42 13 v. U.S.C. § 406(b) 14 COMMISSIONER OF SOCIAL (ECF No. 24) SECURITY, 15 Defendant. 16 17 I. 18 INTRODUCTION AND BACKGROUND 19 On March 2, 2021, Plaintiff Augustin Ybarra Perez filed this action challenging the 20 denial of social security benefits. (ECF No. 1.) Following the exchange of confidential letter 21 briefs, on December 27, 2021, pursuant to the parties’ stipulation, this action was closed and 22 remanded for further consideration. (ECF Nos. 19, 20.) Judgment was entered in favor of 23 Plaintiff. (ECF No. 21.) On January 24, 2022, the Court entered a stipulation under the EAJA in 24 the amount of $5,000. (ECF No. 20.) 25 Following remand, a favorable decision was issued awarding $80,236.00 in total past due 26 benefits after a reduction for worker’s compensation benefits. (Mot. Att’y Fees (“Mot.”) 3, ECF 27 No. 24.) Martha Yancey of Yancey Law, PC (“Counsel”), representing Plaintiff, filed the instant motion for attorney fees on March 27, 2023. Counsel requests fees in the gross amount of 1 $17,000.00 pursuant to § 206(b)(1) of the Social Security Act, 42 U.S.C. § 406(b), with an offset 2 of $5,000 for fees previously awarded under the Equal Access to Justice Act, 28 U.S.C. § 3 2412(d) (“EAJA”). 4 Plaintiff was served with the motion. (ECF No. 26.)1 Plaintiff did not file any objection 5 to the motion. On April 27, 2023, Defendant filed a response to the motion indicating that in the 6 role of trustee, it has provided “an analysis of the fee request and takes no position on the 7 reasonableness of the request.” (ECF No. 27 at 4.) For the reasons discussed herein, Counsel’s 8 motion for attorney fees shall be granted. 9 II. 10 LEGAL STANDARD 11 In relevant part, 42 U.S.C. § 406(b)(1)(A) provides that when a federal court “renders a 12 judgment favorable to a claimant . . . who was represented before the court by an attorney,” the 13 court may allow reasonable attorney fees “not in excess of 25 percent of the total of the past-due 14 benefits to which the claimant is entitled by reason of such judgment.” The payment of such 15 award comes directly from the claimant’s benefits. 42 U.S.C. § 406(b)(1)(A). 16 The Supreme Court has explained that a district court reviews a petition for section 17 406(b) fees “as an independent check” to assure that the contingency fee agreements between the 18 claimant and the attorney will “yield reasonable results in particular cases.” Gisbrecht v. 19 Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful 20 attorney-client fee agreements,” and is to look first at the contingent-fee agreement, and then test 21 it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (quoting 22 Gisbrecht, 535 U.S. at 793). The twenty-five percent maximum fee is not an automatic 23 entitlement, and courts are required to ensure that the requested fee is reasonable. Gisbrecht, 535 24 25 1 As indicated in the motion, counsel first attempted to serve the motion for attorneys’ fees on the Plaintiff by U.S. Postal Service Certified Mail. (ECF No. 24 at 7.) On April 11, 2023, the Court issued an order advising Counsel that while service is generally complete upon mailing, the Court would not act on the instant motion because the 26 tracking information indicated the postal service still had the parcel in transit; and that the Court would not order the Plaintiff’s counsel to take any action, however, advised Counsel they may choose to re-serve the motion if Counsel 27 chose to expedite the process given the status. (ECF No. 25.) Thereafter, on April 13, 2023, Counsel filed a certificate of service demonstrating Counsel promptly re-served the motion on April 11, 2023, and that the motion 1 U.S. at 808–09 (“§ 406(b) does not displace contingent-fee agreements within the statutory 2 ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those 3 agreements”). Agreements seeking fees in excess of twenty-five percent of the past-due benefits 4 awarded are not enforceable. Gisbrecht, 535 U.S. at 807. The attorney has the burden of 5 demonstrating that the fees requested are reasonable. Gisbrecht, 535 U.S. at 807 n.17; Crawford, 6 586 F.3d at 1148. 7 While the Supreme Court in Gisbrecht did not expressly “provide a definitive list of 8 factors that should be considered in determining whether a fee is reasonable or how those factors 9 should be weighed, the Court directed the lower courts to consider the ‘character of the 10 representation and the results the representative achieved.’ ” Crawford, 586 F.3d at 1151 11 (quoting Gisbrecht, 535 U.S. at 808). The Ninth Circuit has stated a court may weigh the 12 following factors under Gisbrecht in determining whether the fee was reasonable: (1) the 13 standard of performance of the attorney in representing the claimant; (2) whether the attorney 14 exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of 15 past-due benefits; and (3) whether the requested fees are excessively large in relation to the 16 benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586 17 F.3d at 1151-52. 18 Ultimately, an award of section 406(b) fees is offset by an award of attorney fees granted 19 under the EAJA. Gisbrecht, 535 U.S. at 796; Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 20 1215, 1219 (9th Cir. 2012) (noting “the EAJA savings provision requires an attorney who 21 receives a fee award under § 2412(d) of the EAJA in addition to a fee award under § 406(b) for 22 the ‘same work’ to refund to the Social Security claimant the smaller award.”). 23 III. 24 DISCUSSION 25 The Court has conducts an independent check to insure the reasonableness of the 26 requested fees in relation to this action. Gisbrecht, 535 U.S. at 807. 27 Here, the fee agreement between Plaintiff and Counsel provides that “I agree that my 1 past-due benefits that are awarded to my family and me in the event my case is won.” (ECF No. 2 24-3 at 1.”) Plaintiff has been awarded retroactive benefits in the amount of awarding 3 $80,236.00 in total past due benefits after a reduction for worker’s compensation benefits. (See 4 Mot. 3; Ex. A, ECF No. 24-1 at 1-8.) 5 Defendant’s filing in the role of trustee, states “[t]he award letter did not provide a 6 cumulative total of past-due benefits but rather indicated benefits due for various periods. Based 7 on the indicated 25% withheld for potential payment of attorney fees, Counsel’s calculation 8 appears to be correct.” (ECF No. 27 at 2.) The calculation is supported in this regard, however 9 additionally, the notice letter does state: “[y]our past-due Social Security benefits are $80,236.00 10 for November 2017 through December 2022. (ECF No. 24-1 at 4.) Twenty-five percent (25%) 11 was withheld in the amount of $20,059.00 for the payment of attorneys’ fees. (Id.) 12 Counsel here is only seeking $17,000.00, or approximately twenty-one percent (21.19%) 13 of the total past due benefits. 14 Consideration of the factors set forth in Gisbrecht and Crawford warrants no reduction of 15 the fee Counsel seeks. There is no indication that a reduction of fees is warranted for 16 substandard performance. Counsel is an experienced, competent attorney who secured a 17 successful result for Plaintiff. There is no indication that Counsel was responsible for any delay 18 in the court proceedings. Counsel was successful in obtaining a stipulation for remand following 19 the exchange of letter briefs. 20 Plaintiff agreed to a twenty-five percent (25%) fee at the outset of the representation, and 21 in reflecting the standard withholding by the Agency, the Court finds the fee of $17,000.00 is not 22 excessively large in relation to the retroactive award of $80,236.00, particularly given Counsel is 23 only seeking approximately twenty-one percent (21%). In making this determination, the Court 24 recognizes the contingent nature of this case and the risk that counsel took of going 25 uncompensated. Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). 26 In Crawford the Ninth Circuit found that fees of $519, $875, and $902 per hour, for time 27 of both attorneys and paralegals, was not excessive. Crawford, 486 F.3d at 1153 (Clifton, J., 1 be routinely done and find fee awards of an effective hourly rate much higher than this to be 2 reasonable. Williams v. Berryhill, No. EDCV 15-919-KK, 2018 WL 6333695, at *2 (C.D. Cal. 3 Nov. 13, 2018) (awarding fee request that provides an effective hourly rate of $1,553.36 per 4 hour); Coles v. Berryhill, No. EDCV 14-1488-KK, 2018 WL 3104502, at *3 (C.D. Cal. June 21, 5 2018) (effective hourly rate of $1,431.94 reasonable under the circumstances); Palos v. Colvin, 6 No. CV 15-04261-DTB, 2016 WL 5110243, at *2 (C.D. Cal. Sept. 20, 2016) (fees sought 7 translate to $1,546.39 per hour for attorney and paralegal services); see also Villa v. Astrue, No. 8 CIVS-06-0846 GGH, 2010 WL 118454, at *1, n.1 (E.D. Cal. Jan. 7, 2010) (“In practice, the 9 more efficient counsel is in court, the higher will be the hourly fee amount represented in a § 406 10 fee award.”). 11 Counsel expended 26.9 hours in this matter, for an effective hourly rate of $631.97. 12 (Mot. 3.) This is in line with the above cases. Therefore, given the above caselaw and 13 contingency nature of this action, the lack of any objection, and given counsel is seeking less 14 than 25%, the Court finds that the requested fees are reasonable, and the representation of the 15 claimant resulted in the action being remanded for further proceedings and ultimately, substantial 16 benefits were awarded. 17 The award of Section 406(b) fees is offset by any prior award of attorney fees granted 18 under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. In this instance, Petitioner has 19 previously been awarded $5,000 in EAJA fees and the award of fees under Section 406(b) shall 20 be offset in that amount. 21 IV. 22 CONCLUSION AND ORDER 23 For the reasons stated above, the Court finds that the fees sought by Counsel pursuant to 24 Section 406(b) are reasonable. Accordingly, IT IS HEREBY ORDERED that: 25 1. Counsel’s motion for an award of attorney fees pursuant to Section 406(b) in the 26 amount of $17,000.00, (ECF No. 24), is GRANTED; 27 2. The Court authorizes payment to Martha Yancey of Yancey Law, PC, in the 1 past due disability benefits; and 2 3, Upon receipt of this sum, Counsel shall remit $5,000.00 directly to Plaintiff as an 3 offset for EAJA fees previously awarded pursuant to 28 U.S.C. § 2412. 4 5 IT IS SO ORDERED. FA. ee 6 | Dated: _ April 28, 2023 " 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