(SS) Barron 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 THOMAS BARRON, No. 2:19-cv-00119-EFB (SS) 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 18 Pursuant to 42 U.S.C. § 406(b), counsel for plaintiff in the above-entitled action seeks an 19 award of attorney fees in the amount of $21,932.75.00. ECF Nos. 28 & 29. Defendant has not 20 opposed the motion. 21 Plaintiff was awarded past due benefits, and he previously entered into a retainer 22 agreement with his attorney which provided that he would pay counsel 25 percent of any past-due 23 benefits won as a result of the appeal in this case. ECF No. 28-1. The amount requested equals 24 25% of the past due benefits awarded to plaintiff. ECF No. 28-2 at 5 (plaintiff was awarded a 25 total of $87,731.00 from which the Social Security Administration withheld $21,932.75 for 26 attorney fees). Plaintiff’s attorney spent 29.1 hours litigating the case. ECF No. 28-3. 27 ///// 28 ///// 1 42 U.S.C. § 406(b)(1)(A) provides, in relevant part: 2 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 3 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 4 the total of the past-due benefits to which the claimant is entitled by reason of such judgment. 5 6 Rather than being paid by the government, fees under the Social Security Act are awarded 7 out of the claimant’s disability benefits. Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991), 8 receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 1991). 9 However, the 25 percent statutory maximum fee is not an automatic entitlement; the court also 10 must ensure that the requested fee is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 11 (2002) (“We hold that § 406(b) does not displace contingent-fee agreements within the statutory 12 ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those 13 agreements.”). “Within the 25 percent boundary . . . the attorney for the successful claimant must 14 show that the fee sought is reasonable for the services rendered.” Id. at 807. A “court may 15 properly reduce the fee for substandard performance, delay, or benefits that are not in proportion 16 to the time spent on the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (en 17 banc). 18 After this court remanded for further proceedings, plaintiff was found disabled and 19 awarded past-due benefits. ECF Nos. 23, 28-2. The Commissioner withheld from that award 20 $21,932.75, which represented 25 percent of the award, for attorney fees. ECF No. 28-2 at 5. 21 The amount requested by counsel here, $21,932.75, represents an hourly rate of about $750.00. 22 See ECF No. 29 at 2. Counsel did not delay these proceedings, and his representation of plaintiff 23 was not substandard. Indeed, he successfully represented his client’s interests before this court. 24 Based on the risk of loss taken in representing plaintiff, counsel’s experience in the field of Social 25 Security law, and the results achieved in this case, the court finds that fee request is reasonable. 26 See De Vivo v. Berryhill, No. 1:15-cv-1332-EPG, 2018 WL 4262007 (E.D. Cal. Sept. 6, 2018) 27 (awarding fees at effective hourly range of $1,116.26); Jamieson v. Astrue, No. 1:09cv0490 LJO 28 DLB, 2011 WL 587096 (E.D. Cal. Feb. 9, 2011) (finding fee at effective hourly rate of $1,169.49 1 | reasonable); Naddour v. Colvin, No.: 13-CV-1407-BAS, 2016 WL 4248557 (S.D. Cal. Aug. 11, 2 | 2016) (awarding fee at effective hourly rate of $1,063); Kazanjian v. Astrue, No. 09 civ. 3678 3 | (BMC), 2011 WL 2847439, at *1-2 (E.D.N.Y. July 15, 2011) (finding that counsel “performed 4 | well, diligently, and with unusual efficiency,” and awarding fee at hourly rate of $2,100). 5 Counsel notes that, following its order of remand, the court awarded $6,500.00 in Equal 6 || Access to Justice Act (“EAJA”) fees. See ECF No. 27. However, counsel avers that “these fees 7 || were usurped by the Treasury Department for past due debts owed by Barron. As such, no fees 8 | have been collected yet on this case.” ECF No. 29 at 2. Asa result, no EAJA offset is required in 9 || this instance. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (holding that where attorney’s 10 || fees are awarded under both EAJA and § 406(b), the attorney must refund the smaller of the two 11 || awards to the plaintiff). 12 Accordingly, it is hereby ORDERED that: 13 1. Plaintiffs counsel’s motion for attorney’s fees (ECF No. 28) is granted. 14 2. Plaintiff’s counsel is awarded a total of $21,932.75 in fees pursuant to 42 U.S.C. 15 | § 406(b). 16 || DATED: July 28, 2023. □□ PDEA 7 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28