Casey Ellen Fickardt v. Commissioner of Social Security

E.D. California

Casey Ellen Fickardt v. Commissioner of Social Security

DecidedNovember 10, 2025

Docket2:21-cv-00250

StatusUnknown

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Casey Ellen Fickardt v. Commissioner of Social Security, (E.D. Cal. 2025).

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CASEY ELLEN FICKARDT, No. 2:21-cv-00250-EFB (SS) 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 Pursuant to 42 U.S.C. § 406(b), counsel for plaintiff in the above-entitled action seeks an 18 award of attorney fees in the amount of $47, 652.75. ECF No. 23. Defendant has filed a 19 response, in which he indicates non-opposition to the motion. ECF No. 25. For the reasons set 20 forth below, the court grants the motion. 21 Section 406 of the Social Security Act, 42 U.S.C. § 406(b)(1)(A), provides, in relevant 22 part: Whenever a court renders a judgment favorable to a claimant under 23 this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment 24 a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled 25 by reason of such judgment. 26 Rather than being paid by the government, fees under the Social Security Act are awarded out of 27 the claimant’s disability benefits. Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991), 28 receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 1991). The 25 1 percent statutory maximum fee is not an automatic entitlement, however; the court also must 2 ensure that the requested fee is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 (2002) 3 (“We hold that § 406(b) does not displace contingent-fee agreements within the statutory ceiling; 4 instead, § 406(b) instructs courts to review for reasonableness fees yielded by those 5 agreements.”). “Within the 25 percent boundary . . . the attorney for the successful claimant must 6 show that the fee sought is reasonable for the services rendered.” Id. at 807. A “court may 7 properly reduce the fee for substandard performance, delay, or benefits that are not in proportion 8 to the time spent on the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (en 9 banc). 10 Counsel for plaintiff has requested attorney’s fees totaling $47,652.75 under § 406(b). 11 ECF No. 23. The record demonstrates that counsel represented plaintiff in her appeal from her 12 Social Security disability benefits denial, ultimately securing for her a favorable judgment from 13 this court and an award of past-due benefits dating back to March 2013, see ECF Nos. 1, 19-20, 14 23-4, thus satisfying the threshold requirements of 42 U.S.C. § 406(b)(1)(A). See 42 U.S.C. § 15 406(b)(1)(A) (permitting an award of attorney’s fees “[w]henever a court renders a judgment 16 favorable to a claimant under this subchapter who was represented before the court by an 17 attorney”). 18 The amount requested is reasonable. See 42 U.S.C. § 406(b)(1)(A). The uncontested 19 record demonstrates that the amount requested, $47,652.75, reflects 25 percent of the past-due 20 benefits that plaintiff was awarded by defendant, and that plaintiff’s counsel is entitled to this 21 percentage pursuant to the fee agreements into which counsel and the plaintiff entered. See ECF 22 No. 23, Yim Decl. ¶ 3, Exs. A-B (fee agreements); ECF No. 23-4 (letter from Social Security 23 Administration), at 4. There are no factors on the record suggesting that this fee award is 24 unreasonable. See Gisbrecht, 535 U.S. at 807-09; Crawford, 586 F.3d at 1151. Counsel obtained 25 a successful result for plaintiff in this case, representing her capably over many years and through 26 multiple levels of review. The record does not suggest that counsel performed substandardly in 27 any fashion, nor engaged in dilatory tactics. See Gisbrecht, 535 U.S. at 808; Crawford, 586 F.3d 28 at 1151. 1 The requested fee also does not reflect an undue windfall to counsel. See Crawford, 586 2 F.3d at 1152. Counsel tendered with his motion records indicating that he spent 62 hours 3 performing tasks related to the representation of plaintiff in this matter. ECF No. 23, Yim Decl. ¶ 4 9, Ex. C. Defendant observes that this would reflect an hourly rate of approximately $745. ECF 5 No. 25 at 1-2. This hourly rate is not unreasonable, nor does it render the 25-percent contingency 6 fee award unreasonable. See, e.g., Crawford, 586 F.3d at 1145-47, 1153 (approving as reasonable 7 in 2009 awards of attorney’s fees that resulted in effective hourly rates of $519, $875, and $902); 8 Lowery v. Comm’r of Soc. Sec., No. 2:22-CV-01979-EFB (SS), 2025 WL 417985, at *1 (E.D. 9 Cal. Feb. 6, 2025) (awarding attorney’s fees at effective hourly rate of $863); Snell v. Kijakazi, 10 No. 2:18-CV-02719-EFB, 2022 WL 525482, at *1 (E.D. Cal. Feb. 22, 2022) (awarding fees at 11 effective hourly rate of $900); Mayfield v. Comm’r of Soc. Sec., No. 1:16-cv-01084-SAB, ECF 12 No. 24, at 5 (E.D. Cal. March 19, 2020) (approving hourly rate of $1,025.22 for paralegal and 13 attorney time); Biggerstaff v. Saul, 840 Fed. App’x 69, 71 (9th Cir. 2020) (affirming $1,400.00 14 per hour for combined attorney and paralegal work); see generally In re Washington Public 15 Power Supply Sys. Lit., 19 F.3d 1291, 1299-1301 (9th Cir. 1994) (a contingency fee agreement 16 may reasonably reflect rates that far exceed market value, because counsel assumes the financial 17 risk intrinsic to the contingency); see also Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. 18 Cal. 2003) (same). 19 Accordingly, undersigned finds the fee amount requested reasonable in light of the 20 contingency fee agreement executed between counsel and plaintiff, the time counsel spent 21 litigating the case, the risk counsel incurred by representing plaintiff on contingency, the 22 successful result achieved, and the absence of any indication of dilatory conduct or a windfall to 23 counsel. See Gisbrecht, 535 U.S. at 808-09; Crawford, 586 F.3d at 1151. 24 Counsel acknowledges that the award must be offset by the fees previously awarded under 25 the Equal Access to Justice Act (“EAJA”). ECF No. 23; see Gisbrecht, 535 U.S. at 796. On July 26 18, 2019, the court awarded counsel $5,800 in attorney’s fees under the EAJA, see Fickardt v. 27 28 1 || Commissioner, No. 2:16-cv-02596, Doc. No. 24 (E.D. Cal. July 18, 2019),! and, on December 20, 2 || 2022, this court awarded counsel $7,365.55 under the EAJA, pursuant to the parties’ stipulation. 3 | ECF No. 22. Because these total $13,165.55, which is less than the amount of attorney’s fees 4 | requested under 42 U.S.C. § 406(b), once counsel receives the fee award under § 406(b), counsel 5 || must refund to plaintiff the amount the prior awards under the EAJA. See Gisbrecht, 535 US. at 6 | 796. 7 Accordingly, it is hereby ORDERED that: 8 1. Plaintiffs counsel’s motion for attorney’s fees (ECF No. 23) is granted. 9 2.

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CASEY ELLEN FICKARDT, No. 2:21-cv-00250-EFB (SS) 12 Plaintiff, 13 v. ORDER 14 COMMISSIONER OF SOCIAL SECURITY, 15 Defendant. 16 17 Pursuant to 42 U.S.C. § 406(b), counsel for plaintiff in the above-entitled action seeks an 18 award of attorney fees in the amount of $47, 652.75. ECF No. 23. Defendant has filed a 19 response, in which he indicates non-opposition to the motion. ECF No. 25. For the reasons set 20 forth below, the court grants the motion. 21 Section 406 of the Social Security Act, 42 U.S.C. § 406(b)(1)(A), provides, in relevant 22 part: Whenever a court renders a judgment favorable to a claimant under 23 this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment 24 a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled 25 by reason of such judgment. 26 Rather than being paid by the government, fees under the Social Security Act are awarded out of 27 the claimant’s disability benefits. Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991), 28 receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 1991). The 25 1 percent statutory maximum fee is not an automatic entitlement, however; the court also must 2 ensure that the requested fee is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 (2002) 3 (“We hold that § 406(b) does not displace contingent-fee agreements within the statutory ceiling; 4 instead, § 406(b) instructs courts to review for reasonableness fees yielded by those 5 agreements.”). “Within the 25 percent boundary . . . the attorney for the successful claimant must 6 show that the fee sought is reasonable for the services rendered.” Id. at 807. A “court may 7 properly reduce the fee for substandard performance, delay, or benefits that are not in proportion 8 to the time spent on the case.” Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (en 9 banc). 10 Counsel for plaintiff has requested attorney’s fees totaling $47,652.75 under § 406(b). 11 ECF No. 23. The record demonstrates that counsel represented plaintiff in her appeal from her 12 Social Security disability benefits denial, ultimately securing for her a favorable judgment from 13 this court and an award of past-due benefits dating back to March 2013, see ECF Nos. 1, 19-20, 14 23-4, thus satisfying the threshold requirements of 42 U.S.C. § 406(b)(1)(A). See 42 U.S.C. § 15 406(b)(1)(A) (permitting an award of attorney’s fees “[w]henever a court renders a judgment 16 favorable to a claimant under this subchapter who was represented before the court by an 17 attorney”). 18 The amount requested is reasonable. See 42 U.S.C. § 406(b)(1)(A). The uncontested 19 record demonstrates that the amount requested, $47,652.75, reflects 25 percent of the past-due 20 benefits that plaintiff was awarded by defendant, and that plaintiff’s counsel is entitled to this 21 percentage pursuant to the fee agreements into which counsel and the plaintiff entered. See ECF 22 No. 23, Yim Decl. ¶ 3, Exs. A-B (fee agreements); ECF No. 23-4 (letter from Social Security 23 Administration), at 4. There are no factors on the record suggesting that this fee award is 24 unreasonable. See Gisbrecht, 535 U.S. at 807-09; Crawford, 586 F.3d at 1151. Counsel obtained 25 a successful result for plaintiff in this case, representing her capably over many years and through 26 multiple levels of review. The record does not suggest that counsel performed substandardly in 27 any fashion, nor engaged in dilatory tactics. See Gisbrecht, 535 U.S. at 808; Crawford, 586 F.3d 28 at 1151. 1 The requested fee also does not reflect an undue windfall to counsel. See Crawford, 586 2 F.3d at 1152. Counsel tendered with his motion records indicating that he spent 62 hours 3 performing tasks related to the representation of plaintiff in this matter. ECF No. 23, Yim Decl. ¶ 4 9, Ex. C. Defendant observes that this would reflect an hourly rate of approximately $745. ECF 5 No. 25 at 1-2. This hourly rate is not unreasonable, nor does it render the 25-percent contingency 6 fee award unreasonable. See, e.g., Crawford, 586 F.3d at 1145-47, 1153 (approving as reasonable 7 in 2009 awards of attorney’s fees that resulted in effective hourly rates of $519, $875, and $902); 8 Lowery v. Comm’r of Soc. Sec., No. 2:22-CV-01979-EFB (SS), 2025 WL 417985, at *1 (E.D. 9 Cal. Feb. 6, 2025) (awarding attorney’s fees at effective hourly rate of $863); Snell v. Kijakazi, 10 No. 2:18-CV-02719-EFB, 2022 WL 525482, at *1 (E.D. Cal. Feb. 22, 2022) (awarding fees at 11 effective hourly rate of $900); Mayfield v. Comm’r of Soc. Sec., No. 1:16-cv-01084-SAB, ECF 12 No. 24, at 5 (E.D. Cal. March 19, 2020) (approving hourly rate of $1,025.22 for paralegal and 13 attorney time); Biggerstaff v. Saul, 840 Fed. App’x 69, 71 (9th Cir. 2020) (affirming $1,400.00 14 per hour for combined attorney and paralegal work); see generally In re Washington Public 15 Power Supply Sys. Lit., 19 F.3d 1291, 1299-1301 (9th Cir. 1994) (a contingency fee agreement 16 may reasonably reflect rates that far exceed market value, because counsel assumes the financial 17 risk intrinsic to the contingency); see also Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. 18 Cal. 2003) (same). 19 Accordingly, undersigned finds the fee amount requested reasonable in light of the 20 contingency fee agreement executed between counsel and plaintiff, the time counsel spent 21 litigating the case, the risk counsel incurred by representing plaintiff on contingency, the 22 successful result achieved, and the absence of any indication of dilatory conduct or a windfall to 23 counsel. See Gisbrecht, 535 U.S. at 808-09; Crawford, 586 F.3d at 1151. 24 Counsel acknowledges that the award must be offset by the fees previously awarded under 25 the Equal Access to Justice Act (“EAJA”). ECF No. 23; see Gisbrecht, 535 U.S. at 796. On July 26 18, 2019, the court awarded counsel $5,800 in attorney’s fees under the EAJA, see Fickardt v. 27 28 1 || Commissioner, No. 2:16-cv-02596, Doc. No. 24 (E.D. Cal. July 18, 2019),! and, on December 20, 2 || 2022, this court awarded counsel $7,365.55 under the EAJA, pursuant to the parties’ stipulation. 3 | ECF No. 22. Because these total $13,165.55, which is less than the amount of attorney’s fees 4 | requested under 42 U.S.C. § 406(b), once counsel receives the fee award under § 406(b), counsel 5 || must refund to plaintiff the amount the prior awards under the EAJA. See Gisbrecht, 535 US. at 6 | 796. 7 Accordingly, it is hereby ORDERED that: 8 1. Plaintiffs counsel’s motion for attorney’s fees (ECF No. 23) is granted. 9 2. Plaintiffs counsel is awarded a total of the $47,652.75 in fees pursuant to 42 U.S.C. 10 | § 406(b). 11 3. Upon receipt of the fee award, counsel shall refund to plaintiff the sum of $13,165.55, 12 || previously awarded under the EAJA. 13 14 | Dated: November 10, 2025 Zatt?T 7 eZACAY EDMUND F. BRENNAN 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 %6 ' The undersigned takes judicial notice of the orders and filings in Fickardt v. Commissioner, No. 2:16-cv-02596, Doc. No. 24 (E.D. Cal.), pursuant to Federal Rule of Civil 27 || Procedure 201. See MGIC Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980); Interstate Nat. Gas Co. v. S. Cal. Gas Co., 28 | 209 F.2d 380, 385 (9th Cir. 1953).

In Re Washington Public Power Supply System Securities Litigation. Class Chemical Bank, in Its Representative Capacity as Trustee for Bondholders, and Bernstein, Litowitz, Berger & Grossman Milberg, Weiss, Bershad, Specthrie & Lerach Molloy, Jones & Donahue, P.C. v. City of Seattle Oregon Public Entities, Benton Rural Electric Association, Washington Washington Public Power Supply System R.W. Beck and Associates Ebasco Services Incorporated United Engineers & Constructors, Inc. Director Participants' Committee Public Utility District No. 1, of Klickitat County United States of America, on Behalf of Itself and Its Agency, the Bonneville Power Administration State of Washington Bonneville Power Administration, Class and Lawrence Laub v. Continental Assurance Company v. City of Seattle Oregon Public Entities, Benton Rural Electric Association, Washington Washington Public Power Supply System R.W. Beck and Associates Ebasco Services Incorporated United Engineers & Constructors, Inc. Director Participants' Committee Public Utility District No. 1, of Klickitat County United States of America, on Behalf of Itself and Its Agency, the Bonneville Power Administration State of Washington Bonneville Power Administration, Class and Continental Assurance Company v. Berger & Montague, P.A. v. City of Seattle Oregon Public Entities, Benton Rural Electric Association, Washington Washington Public Power Supply System R.W. Beck and Associates Ebasco Services Incorporated United Engineers & Constructors, Inc. Director Participants' Committee Public Utility District No. 1, of Klickitat County United States of America, on Behalf of Itself and Its Agency, the Bonneville Power Administration State of Washington Bonneville Power Administration

19 F.3d 1291 (Ninth Circuit, 1994)

Crawford v. Astrue

586 F.3d 1142 (Ninth Circuit, 2009)

Hearn v. Barnhart

262 F. Supp. 2d 1033 (N.D. California, 2003)

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