Gates v. Berryhill ( 2020 )

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 M. G., Case No. 19-cv-00594-JSC 8 Plaintiff, ORDER RE: PLAINTIFF’S MOTION 9 v. FOR ATTORNEY'S FEES 10 NANCY A. BERRYHILL, Re: Dkt. No. 24 Defendant. 11 12 Plaintiff’s counsel, Robert Weems, moves for attorney’s fees pursuant to 42 U.S.C. § 13 406(b) for representing Plaintiff in her appeal of the Commissioner of the Social Security 14 Administration’s (“Commissioner’s”) denial of social security disability benefits. (Dkt. No. 24.) 15 The Commissioner does not oppose Plaintiff’s request for fees. After careful consideration of 16 Plaintiff’s motion and the relevant legal authority, the Court determines that oral argument is 17 unnecessary, see N.D. Cal. Civ. L.R. 7-1(b), VACATES the December 3, 2020 hearing, and 18 GRANTS the motion for attorney’s fees pursuant to Section 406(b). 19 BACKGROUND 20 This case stems from Plaintiff’s appeal of the SSA’s denial of social security benefits for 21 multiple mental impairments and other physically limiting conditions, including: depression, 22 anxiety, schizophrenia, as well as stomach and back pain. On September 10, 2019, the Court 23 granted the parties’ stipulation that the action be remanded because Defendant determined that 24 “inconsistencies in the record warrant[ed] further administrative action.” (Dkt. No. 20 at 1.) On 25 April 6, 2020, pursuant to the parties’ stipulation, the Court awarded $7,200.00 in fees to 26 Plaintiff’s counsel under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Dkt. 27 No. 23.) 1 Plaintiff disabled. (Dkt. No. 24-2.) On July 20, 2020, Plaintiff was notified that she had been 2 awarded disability benefits from 2015-2020 and that she was owed $51,541.26 in past-due 3 benefits. (Dkt. No. 24-3 at 2.) Plaintiff’s counsel thereafter filed the now pending motion for 4 attorney’s fees for work performed in this Court under Section 406(b). (Dkt. No. 24.) Pursuant to 5 Plaintiff and her counsel’s contingency fee agreement for this case, counsel may seek fees up to 25 6 percent of any past-due benefits awarded to Plaintiff. (Dkt. No. 24-1.) Counsel accordingly 7 requests fees in the amount of $12,885.34 that represents approximately 25 percent of Plaintiff’s 8 past-due benefits. (Dkt. No. 24 at 1.) Plaintiff’s counsel served Plaintiff with a copy of the 9 motion. (Dkt. No. 25 at 4.) The Commissioner filed no opposition to the motion for attorney’s 10 fees filed by Plaintiff’s counsel. 11 LEGAL STANDARD 12 Section 406(b) provides that “[w]henever a court renders a judgment favorable to a [social 13 security] claimant under this subchapter who was represented before the court by an attorney, the 14 court may determine and allow as part of its judgment a reasonable fee” to claimant’s attorney; 15 such a fee can be no more than 25 percent of the total of past-due benefits awarded to the claimant. 16 42 U.S.C. § 406(b)(1)(A). A court may award such a fee even if the court’s judgment did not 17 immediately result in an award of past-due benefits; where the court, for instance, remands for 18 further consideration, the court may calculate the 25 percent fee based upon any past-due benefits 19 awarded on remand. See, e.g., Crawford v. Astrue, 586 F.3d 1142, 1144 (9th Cir. 2009) (en banc). 20 Under Section 406(b), a court must serve “as an independent check” of contingency fee 21 agreements “to assure that they yield reasonable results.” Gisbrecht v. Barnhart, 535 U.S. 789, 22 807 (2002). Section 406(b) “does not displace contingent-fee agreements within the statutory 23 ceiling; instead, [Section] 406(b) instructs courts to review for reasonableness fees yielded by 24 those agreements.” Id. at 808-09. The court’s review of a fee agreement is based on the character 25 of the representation and the results achieved, see Gisbrecht, 535 U.S. at 808, and can include 26 analyzing: whether counsel provided substandard representation; any dilatory conduct by counsel 27 to accumulate additional fees; whether the requested fees are excessively large in relation to the 1 1151-52. 2 A court must offset an award of Section 406(b) attorneys’ fees by any award of fees 3 granted under the EAJA. Gisbrecht, 535 U.S. at 796; Parrish v. Comm'r of Soc. Sec. Admin., 698 4 F.3d 1215, 1218 (9th Cir. 2012). 5 ANALYSIS 6 Plaintiff's counsel has demonstrated that the amount of fees requested is reasonable for the 7 services rendered. See Gisbrecht, 535 U.S. at 807. First, while not dispositive, Plaintiff and 8 counsel’s contingency fee agreement is within the 25 percent threshold permitted under Section 9 406(b) as the agreement provides that counsel will not ask for a fee of more than 25 percent of 10 total past-due benefits awarded. (Dkt. No. 24-1 at 1.) Second, there is no indication that a 11 reduction of fees is warranted due to any substandard performance by counsel or that counsel 12 delayed these proceedings in an effort to increase the amount of fees awarded. While counsel was 13 ordered to show cause as to why the action should not be dismissed for failure to prosecute after 14 failing to meet the deadline for filing Plaintiff’s motion for summary judgment (Dkt. No. 16), 15 Plaintiff’s counsel responded and filed Plaintiff’s motion for summary judgment within the 16 deadline imposed by the Court’s Show Cause Order. (Dkt. Nos. 17 & 18.) Nor is the amount of 17 fees, $12,885.34, excessive in relation to the past-due benefits award of $51,541.26. See, e.g., 18 Eckert v. Berryhill, No. 15-CV-04461-JCS, 2017 WL 3977379, at *3 (N.D. Cal. Sept. 11, 2017) 19 (awarding $16,566.25 in fees following an award of $66,265 in retroactive benefits); Devigili v. 20 Berryhill, No. 15-CV-02237-SI, 2017 WL 2462194, at *2 (N.D. Cal. June 7, 2017) (awarding 21 $15,278.00 in fees following an award of $76,391.00 in retroactive benefits); Conner v. Colvin, 22 No. 13-CV-03324-KAW, 2016 WL 5673297, at *3 (N.D. Cal. Oct. 3, 2016) (awarding $17,746.00 23 in fees following an award of $94,987.60 in retroactive benefits). Lastly, the Court finds that 24 Plaintiff’s counsel assumed a substantial risk of not recovering fees when he accepted the case. 25 Plaintiff and counsel entered into the contingency fee agreement prior to the filing of this action. 26 (Dkt. No. 24-1 at 5.) At that time, the Agency had completely denied Plaintiff any requested 27 benefits, and counsel could not know that the action would result in remand to the Commissioner 1 record. 2 Accordingly, the Court finds that the amount of requested fees is reasonable. 3 CONCLUSION 4 For the reasons described above, the Court GRANTS Plaintiffs counsel’s motion for fees. 5 The Commissioner is directed to certify fees under 42 U.S.C. § 406(b) in the amount of 6 || $12,885.34, payable to Weems Law Offices. Plaintiff’s counsel is ordered to refund the 7 previously awarded EAJA fees, in the amount of $7,200.00, to Plaintiff. 8 IT IS SO ORDERED. 9 Dated: November 24, 2020 Sut ne CQUELINE SCOTT CORL 12 United States Magistrate Judge 14 15 16 = 17 Z 18 19 20 21 22 23 24 25 26 27 28