(SS) Weimortz v. Commissioner of Social Security ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EMILY WEIMORTZ, No. 2:21-cv-0565-SCR 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 16 Defendant. 17 18 Plaintiff sought judicial review of a final decision of the Commissioner of Social Security 19 (“Commissioner”), denying her application for benefits under the Social Security Act (“the Act”). 20 On January 26, 2022, pursuant to a stipulation of the parties, this Court entered judgment 21 remanding the matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g). ECF 22 Nos. 18 & 19. 23 Now pending before the court is Plaintiff’s May 20, 2024 Motion for an award of 24 attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 24. The Commissioner has filed a 25 statement that he “neither supports nor opposes counsel’s request for attorney’s fees.” ECF No. 26 25 at 2. However, the Commissioner does comment in regard to Plaintiff’s request for a “net” 27 award that “the Order distinguish between the full amount determined as reasonable under section 28 406(b) and the net amount awarded for payment purpose.” ECF No. 25 at 2. For the reasons set 1 forth below, the Motion will be granted. 2 I. REASONABLENESS OF FEE REQUEST 3 At the outset of the representation, Plaintiff and her counsel entered into a contingent-fee 4 agreement that provided, in relevant part, that if retroactive benefits were awarded, Plaintiff 5 would pay to counsel 25% of the award. ECF No. 24-1. Pursuant to that agreement, Plaintiff’s 6 counsel now seeks attorney’s fees in the amount of $15,875.00 which represents less than 25% of 7 the $100,985.00 in retroactive disability benefits awarded to Plaintiff on remand. ECF No. 24-2. 8 Attorneys are entitled to fees for cases in which they have successfully represented social 9 security claimants: 10 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 11 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 12 the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security 13 may . . . certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits. 14 15 42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42 16 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing 17 party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) 18 (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The goal of fee awards under 19 § 406(b) is “to protect claimants against ‘inordinately large fees’ and also to ensure that attorneys 20 representing successful claimants would not risk ‘nonpayment of [appropriate] fees.’” Parrish v. 21 Comm'r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting Gisbrecht, 535 U.S. 22 at 805) (cleaned up). 23 The 25% statutory maximum fee is not an automatic entitlement, and the court must 24 ensure that the fee requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“406(b) does not 25 displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts 26 to review for reasonableness fees yielded by those agreements”). “Within the 25 percent 27 boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable 28 for the services rendered.” Id. at 807. “[A] district court charged with determining a reasonable 1 fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee 2 arrangements,’ ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 3 Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793, 808). 4 In determining whether the requested fee is reasonable, the court considers “‘the character 5 of the representation and the results achieved by the representative.’” Crawford, 586 F.3d 6 at 1151 (quoting Gisbrecht, 535 U.S. at 808). In determining whether a reduction in the fee is 7 warranted, the court considers whether the attorney provided “substandard representation or 8 delayed the case,” or obtained “benefits that are not in proportion to the time spent on the case.” 9 Id. Finally, the court considers the attorney’s record of hours worked and counsel’s regular 10 hourly billing charge for non-contingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 11 535 U.S. at 808); see also E.D. Cal. R. 293(c)(1) (in fixing attorney’s fees the court considers “the 12 time and labor required”). Below, the Court will consider these factors in assessing whether the 13 fee requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable. 14 Here, Plaintiff’s counsel obtained a successful result.1 There is no indication that a 15 reduction of fees is warranted due to any substandard performance by counsel. Neither the 16 Commissioner nor Plaintiff herself opposes the Motion. There is also no evidence that Plaintiff’s 17 counsel engaged in any dilatory conduct resulting in excessive delay. The court finds that the 18 $15,875.00 fee, which represents about 15.7% of the amount paid in past-due benefits to Plaintiff, 19 is not excessive in relation to the benefits awarded. In making this determination, the court 20 recognizes the contingent fee nature of this case and counsel’s assumption of the risk of going 21 uncompensated in agreeing to represent Plaintiff on such terms. See Crawford, 586 F.3d at 1152 22 (“[t]he attorneys assumed significant risk in accepting these cases, including the risk that no 23 benefits would be awarded or that there would be a long court or administrative delay in resolving 24 the cases”). 25 Counsel has submitted a detailed billing statement in support of the requested fee. ECF 26 27 1 Counsel’s affidavit in support of the fee request does not detail his experience. ECF No. 24 at 5-6. It appears from publicly available records that counsel has been admitted to practice in 28 California since 2010, and a primary area of practice is Social Security law. 1 No. 24-3. The Court finds that the amount of hours expended (16.1) was reasonable, even though 2 Plaintiff did not file a motion for summary judgment. Instead, the majority of time was spent on 3 file review and communication with opposing counsel re: settlement. The administrative record 4 in this case was quite lengthy, at over 3,000 pages. ECF No. 10. The Court notes that calculating 5 the effective hourly rate by dividing the amount sought ($15,875) by the hours (16.1) results in an 6 effective rate of approximately of $985/hour.2 This is an amount approaching what could be 7 considered unreasonable, however, the total amount sought is significantly less than 25% of the 8 past benefit award. 9 Further, the effective hourly rate is in the range approved by other courts. In Crawford, 10 the Ninth Circuit found fee awards in the three consolidated cases to be reasonable; the fee 11 requests ranged from $11,500 to $24,000, and if divided by the hours expended would have 12 resulted in effective rates in the range of $500 to $900/hour. 586 F.3d at 1145-1147. The 13 Crawford opinion approved those rates in 2009. The $985 effective rate is somewhat higher than 14 recent rates approved in this District. See Garcia v. O’Malley, 2024 WL 4121872 (E.D. Cal. 15 September 9, 2024) (effective hourly rate of $685); Guzman Paz v. Commissoner, 2024 WL 16 4029592 (E.D. Cal. September 3, 2024) (effective hourly rate of $883); Garcia v. Commissioner, 17 2024 WL 3968083 (E.D. Cal. August 28, 2024) (effective hourly rate of $864). However, 18 effective rates exceeding $1,000 per hour have been approved by other courts. 19 Accordingly, for the reasons stated above, the court concludes that the fees sought by 20 counsel pursuant to § 406(b) are reasonable. 21 II. OFFSET FOR EAJA FEES 22 An award of § 406(b) fees must be offset by any prior award of attorney’s fees granted 23 under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. 24 Here, Plaintiff’s attorney was previously awarded $3,251.60 in EAJA fees. See ECF No. 23. 25 Counsel therefore must remit that amount to Plaintiff. 26 2 Counsel has not provided the Court with information concerning his normal hourly billing rate 27 for noncontingency fee cases, or the consumer law attorney median rate for the area. Both would have been useful in assessing reasonableness. See Biggerstaff v. Saul, 840 Fed.Appx 69 (9th Cir. 28 2020). 1 Accordingly, IT IS HEREBY ORDERED that: 2 1. Plaintiffs Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 24), is 3 | GRANTED; and 4 2. The Court finds the requested gross amount of $15,875.00 to be reasonable, but such 5 || amount is subject to an offset for the prior EAJA fee award of $3,251.60. Accordingly, counsel 6 | for Plaintiff is awarded $12,623 in attorney’s fees under § 406(b); the Commissioner shall certify 7 || that amount to be paid to counsel from the funds previously withheld for the payment of such 8 | fees. 9 SO ORDERED: 10 | DATE: September 23, 2024 mk 11 SEAN C. RIORDAN 12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28