Aceto v. Social Security

• Court: District Court, D. Nevada
• Decided: February 28, 2023
• Docket: 2:20-cv-02102
• Status: Unknown

Opinion

1 UNITED STATES DISTRICT COURT

2 DISTRICT OF NEVADA

3 * * *

4 MICHAEL ACETO, Case No. 2:20-cv-02102-EJY

5 Plaintiff, ORDER 6 v.

7 COMMISSIONER OF SOCIAL SECURITY,

8 Defendant.

9 10 Pending before the Court is Plaintiff’s counsel’s Motion for Attorney’s Fees Pursuant to 42 11 U.S.C. § 406(b). ECF No. 29. No response was filed. The Court finds as follows. 12 I. BACKGROUND 13 Plaintiff, represented by counsel, filed her Complaint requesting review of the final decision 14 of the Commissioner of Social Security denying Plaintiff’s application for Disability Insurance 15 Benefits and Supplemental Security Income, which the Court remanded for further proceedings on 16 December 20, 2021. ECF No. 24. On March 22, 2022, the Court granted a stipulation for attorney’s 17 fees in the amount of $5,881.00, $17.25 in expenses, and $400 in costs. ECF No. 28. Plaintiff 18 entered into a contingency fee agreement that allows counsel to charge and receive 25% of the past 19 due benefits awarded to Plaintiff as a fee in the event the case was won. On December 26, 2022 the 20 Notice of Award provided Plaintiff with $112,624.10 in past due benefits. Counsel is requesting 21 $20,956.03 in fees under § 406(b). 22 In support of this request, counsel provides records indicating that 25.8 hours of attorney 23 time and 6.0 hours of paralegal time (31.8 hours total) were expended working on this matter. ECF 24 29-1 ¶ 10. Counsel states that if paralegal time is billed at $100 per hour, his rate is $788.99, which 25 is reasonable. 26 II. STANDARD 27 Under 46 U.S.C. § 406(b)(1)(A), “[w]hen a court renders a judgment favorable to a claimant 1 of its judgment a reasonable fee for such representation, not in excess of 25% of the total of the past- 2 due benefits to which the claimant is entitled by reason of such judgment.” 3 In applying Section 406(b), the Court first determines whether a fee agreement has been 4 executed between the plaintiff and her attorney. See, e.g., Garcia v. Astrue, 500 F. Supp. 2d 1239, 5 1242 (C.D. Cal. 2007). If so, the Court must respect “the primacy of lawful attorney-client fee 6 agreements” in awarding fees. Gisbrecht v. Barnhart, 535 U.S. 789, 793 (2002). Nonetheless, the 7 Court has an “affirmative duty” to ensure the fees provided are “reasonable.” Crawford v. Astrue, 8 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc). “A fee resulting from a contingency-fee agreement 9 is unreasonable, and thus subject to reduction by the court, if the attorney provided substandard 10 representation or engaged in dilatory conduct in order to increase the accrued amount of past-due 11 benefits, or if the benefits are large in comparison to the amount of time counsel spent on the case.” 12 Id. at 1148 (internal quotation and citation omitted). The Court’s review of the amount of attorney’s 13 fees is meant as “an independent check” to ensure that the agreement will “yield reasonable results 14 in particular cases.” Gisbrecht, 535 U.S. at 807. 15 III. ANALYSIS 16 Here, counsel asks the Court to approve a contingency fee of $20,956.03, which is 17 approximately 18.61% of the $112,624.10 past-due benefits awarded to Plaintiff. Plaintiff and his 18 counsel entered into a representation agreement approving a contingency fee of 25% of past due 19 benefits awarded upon reversal of any unfavorable ALJ decision for work before the court. ECF 20 No. 29-2. Counsel’s request falls within the terms agreed to by Plaintiff. No evidence suggests that 21 counsel provided anything but effective representation or that he engaged in dilatory conduct. The 22 time spent working on this case, as documented by counsel, appears to be proportionate to the time 23 required for a voluntarily remanded social security case. Therefore, the only remaining question 24 before the Court is whether the benefits are unreasonably large in comparison to the amount of time 25 counsel spent on the case. 26 Giving primacy to the lawful attorney-client fee agreement as directed by Gisbrecht and 27 taking into consideration the risk involved in taking on social-security benefit cases on a contingent- 1 || awarded fees under section 406(b) for similar rates. See, e.g., Crawford, 586 F.3d at 1153 □□□□□□□□□ 2 || effective hourly rates of $519, $875, and $902); Schultz v. Berryhill, Case No. 19-cv-00096-BN\ 3 |} 2021 WL 1381128, at *2 (D. Nev. Apr. 9, 2021) (approving effective hourly rate of $1,395); Ellis 4 || Saul, Case No. 14-cv-01926-GMN, 2020 WL 5043046, at *1 (D. Nev. Aug. 24, 2020) □□□□□□□□□ 5 || effective hourly rate of $971); McCullough v. Berryhill, Case No. 16-cv-00625-BLF, 2018 W 6 |} 6002324 (N.D. Cal. Nov. 15, 2018) (approving effective hourly rate of $875); Palos v. Colvin, Ca 7 || No. 15-cv-04261-DTB, 2016 WL 5110243 (C.D. Cal. Sept. 20, 2016) (approving effective hour 8 || rate of $1,546). The Commissioner did not respond or object to the reasonableness of the fe 9 || requested. 10 |} IV. ORDER 11 IT IS HEREBY ORDERED that the Motion for Attorney Fees Pursuant to 42 U.S. 12 || § 406(b) (ECF No. 29) is GRANTED. A fee award in the amount of $20,956.03 for work befo 13 || the Court is to be paid to Hal Taylor, Esq. from the sums held by the Social Security Commission 14 || from Plaintiffs past-due benefits. 15 IT IS FURTHER ORDERED that Hal Taylor shall refund $5,881.00 previously paid to hi 16 || by the Commissioner under the Equal Access to Justice Act. 17 Dated this 28th day of February, 2023. 18 19 FLAYNAY ake 5 50 UNITEDSTATES MAG TE JUDGE

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