(SS) Swinhart 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 GARY RAYMOND SWINHART, No. 2:20-cv-01955 KJM CKD 12 Plaintiff, 13 v. ORDER 14 KILOLO KIJAKAZI, Acting Commissioner of Social Security, 15 Defendant. 16 17 18 Based on 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 $5,004.50, characterized as “[t]he remaining fees . . . left 20 of the 25% of past due benefits that the SSA withheld for the payment of attorney fees.” (ECF 21 No. 21 at 2, citing ECF 21-1.) Counsel concedes that this amount should be offset in the amount 22 of $1,531.80 for fees previously awarded under EAJA. (See ECF No. 20.) Defendant has filed a 23 response and does not object to the amount requested. (ECF No. 23.) 24 42 U.S.C. § 406(b)(1)(A) provides, in relevant part: 25 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 26 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 27 the total of the past-due benefits to which the claimant is entitled by reason of such judgment. 28 1 | Rather than being paid by the government, fees under the Social Security Act are awarded out of 2 || the claimant’s disability benefits. Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991), 3 || receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 2001). 4 | However, the 25 percent statutory maximum fee is not an automatic entitlement; the court also 5 || must ensure that the requested fee is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 6 || (2002) (“We hold that § 406(b) does not displace contingent-fee agreements within the statutory 7 || ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those 8 || agreements.”). “Within the 25 percent boundary ... the attorney for the successful claimant must 9 || show that the fee sought is reasonable for the services rendered.” Id. at 807. 10 Counsel seeks fees for 7.4 hours. (ECF No. 21-3.) The Court has considered the 11 || character of counsel’s representation and the good results achieved by counsel, which included an 12 || award of benefits. Counsel submitted a detailed billing statement that supports their request. 13 || There is no indication that a reduction of the award is warranted due to any substandard 14 | performance by plaintiffs counsel, as counsel secured a successful result. There is also no 15 || evidence that plaintiff's counsel engaged in any dilatory conduct resulting in delay. 16 Based on the quality of counsel’s representation and the results achieved in this case, the 17 || undersigned finds the number of hours expended to be reasonable. Accordingly, the undersigned 18 | will award the amount of attorney fees requested. 19 Accordingly, IT IS HEREBY ORDERED that: 20 1. Plaintiff's counsel’s motion for attorney fees (ECF No. 21) is granted; and 21 2. Plaintiffs counsel is awarded $5,004.50 in attorney fees pursuant to 28 U.S.C. § 22 406(b). Upon payment of the fees sought herein, counsel shall refund plaintiff the 23 amount of $1,531.80 previously awarded under EAJA. 24 | Dated: January 12, 2023 / ae / 4 [iy ai 25 CAROLYNK. DELANEY 2% UNITED STATES MAGISTRATE JUDGE 27 || □□□□□□□□□□□□□□□□□□□□□□□□□□ 28