(SS) Morgan 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 CASEY MORGAN, No. 2:20-cv-00252 EFB (SS) 12 Plaintiff, 13 v. ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 Defendant. 16 17 Pursuant to 42 U.S.C. § 406(b), counsel for plaintiff in the above-entitled action seeks an 18 award of attorney fees in the amount of $7,173.00. ECF No. 19. Defendant has filed a response. 19 ECF No. 20. 20 Plaintiff was awarded past due benefits, and he previously entered into a retainer 21 agreement with his attorney which provided that he would pay counsel 25 percent of any past-due 22 benefits won as a result of the appeal in this case. ECF No. 19-2. The amount requested is less 23 than 25% of the past due benefits awarded to plaintiff. See ECF Nos. 19-3 & 19-4 (plaintiff was 24 awarded a total of $35,387.36 from which the Social Security Administration withheld $8,846.84 25 for attorney fees). Plaintiff’s attorney spent 22.6 hours litigating the case. ECF 19-5 at 4. 26 42 U.S.C. § 406(b)(1)(A) provides, in relevant part: 27 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 28 the court may determine and allow as part of its judgment a 1 reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by 2 reason of such judgment. 3 Rather than being paid by the government, fees under the Social Security Act are awarded 4 out of the claimant’s disability benefits. Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991), 5 receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 1991). 6 However, the 25 percent statutory maximum fee is not an automatic entitlement; the court also 7 must ensure that the requested fee is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 8 (2002) (“We hold that § 406(b) does not displace contingent-fee agreements within the statutory 9 ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those 10 agreements.”). “Within the 25 percent boundary . . . the attorney for the successful claimant must 11 show that the fee sought is reasonable for the services rendered.” Id. at 807. A “court may 12 properly reduce the fee for substandard performance, delay, or benefits that are not in proportion 13 to the time spent on the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (en 14 banc). 15 After plaintiff filed his motion for summary judgment in this action, the parties stipulated 16 to a remand. ECF Nos. 13 & 14. The Court remanded for further proceedings, and plaintiff was 17 found disabled and awarded past-due benefits. ECF Nos. 15, 19-3. The Commissioner withheld 18 from that award $8,846.84, which represented 25 percent of the award, for attorney fees. ECF 19 No. 19-4. The amount requested by counsel here, $7,173.00, represents an hourly rate of about 20 $317.00. See ECF No. 20 at 3, n.2. 21 Counsel did not delay these proceedings, and her representation of plaintiff was not 22 substandard. Indeed, she successfully represented her client’s interests before this court. Based 23 on the risk of loss taken in representing plaintiff, counsel’s experience in the field of Social 24 Security law, and the results achieved in this case, the court finds that fee request is reasonable. 25 See De Vivo v. Berryhill, No. 1:15-cv-1332-EPG, 2018 WL 4262007 (E.D. Cal. Sept. 6, 2018) 26 (awarding fees at effective hourly range of $1,116.26); Jamieson v. Astrue, No. 1:09cv0490 LJO 27 DLB, 2011 WL 587096 (E.D. Cal. Feb. 9, 2011) (finding fee at effective hourly rate of $1,169.49 28 reasonable); Naddour v. Colvin, No.: 13-CV-1407-BAS, 2016 WL 4248557 (S.D. Cal. Aug. 11, 1 | 2016) (awarding fee at effective hourly rate of $1,063); Kazanjian v. Astrue, No. 09 civ. 3678 2 | (BMC), 2011 WL 2847439, at *1-2 (E.D.N.Y. July 15, 2011) (finding that counsel “performed 3 | well, diligently, and with unusual efficiency,” and awarding fee at hourly rate of $2,100). 4 Counsel notes that, following its order of remand, the Court awarded $6,438.10 in Equal 5 || Access to Justice Act (“EAJA”) fees. See ECF No. 18. However, counsel avers that the 6 || Department of the Treasury confiscated the award of EAJA fees under the Treasury Offset 7 | Program, such that she never received EAJA fees. ECF No. 19 at 8; see also ECF No. 20 at 4. 8 || Asaresult, no EAJA offset is required in this instance. See Gisbrecht v. Barnhart, 535 U.S. 789, 9 || 796 (2002) (holding that where attorney’s fees are awarded under both EAJA and § 406(b), the 10 || attorney must refund the smaller of the two awards to the plaintiff). 11 Accordingly, it is hereby ORDERED that: 12 1. Plaintiffs counsel’s motion for attorney’s fees (ECF No. 19) is granted. 13 3. Plaintiffs counsel is awarded a total of $7,173.00 in fees pursuant to 42 U.S.C. 14 | § 406(b). 15 |} Dated: December 9, 2022. □□ PDEA EDMUND F. BRENNAN 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28