Monroe v. Commissioner of Social Security Administration

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Dennis M Monroe, No. CV-18-02571-PHX-JAT

10 Plaintiff, ORDER

11 v.

12 Commissioner of Social Security Administration, 13 Defendant. 14 15 Pending before the Court is Plaintiff’s Attorney’s Motion for an Award of Attorney 16 Fees under 42 U.S.C. § 406(b) of the Social Security Act. (Doc. 25). The Commissioner 17 did not file a response. The Court now rules. 18 I. BACKGROUND 19 Following a denial of benefits, Plaintiff Dennis Monroe filed an action in this Court 20 seeking judicial review of the Commissioner’s final decision. (Doc. 1 and 15). The Court 21 found reversible error and remanded the claim back to the administrative law judge for 22 further proceedings. (Doc. 21). Thereafter, the Commissioner issued a Notice of Award in 23 the amount of $86,693.00 for past-due benefits. 24 Plaintiff’s counsel now seeks a fee award of $21,673.25, equal to 25% of Plaintiff’s 25 back pay. (Doc. 25). For the following reasons, the Court will grant Plaintiff’s counsel’s 26 motion requesting fees in the amount of $21,673.25. 27 II. APPLICABLE LAW AND ANALYSIS 28 Attorneys who successfully represent Social Security benefits claimants can recover 1 attorney’s fees under section 406(b) of the Social Security Act. 42 U.S.C. § 406(b)(1)(A). 2 42 U.S.C. § 406(b) permits the court to award a reasonable fee to plaintiff’s counsel, not 3 to exceed 25%. Id. 4 To determine a reasonable fee to plaintiff’s counsel, the Supreme Court held that 5 §406(b) “does not displace contingent-fee agreements,” but calls for courts to provide an 6 “independent check, to assure that they yield reasonable results in particular cases.” 7 Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). The Court also said that “[a]greements 8 are unenforceable to the extent that they provide for fees exceeding 25 percent of the past- 9 due benefits.” Id. (citing 42 U.S.C. § 406(b)(1)(A)) (footnote omitted). 10 In determining whether fees sought under § 406(b) are reasonable, courts consider 11 the contingent-fee agreement, the character of the attorney’s representation, and the results 12 achieved. Id. at 808. Courts may also consider the number of hours spent representing the 13 claimant and the lawyer’s normal hourly billing rate for non-contingent-fee cases, but this 14 information does not control the reasonableness determination. Id. at 808–09. Finally, if a 15 claimant’s attorney receives fees under both the Equal Access to Justice Act (EAJA) and 16 § 406(b), the attorney must “refund to the claimant the amount of the smaller fee.” Id. at 17 796 (citation omitted). 18 Here, the Court finds that the amount sought by counsel is reasonable. Plaintiff 19 contracted to pay 25% of past-due benefits on a contingent fee basis for work performed 20 at the Federal Court level. Plaintiff’s counsel seeks $21,673.25 or 25% of the past-due 21 amount awarded to Plaintiff. Counsel claims to have spent 32.9 hours of services rendered 22 in Federal Court. Based on the hours expended, 406(b) fees would be computed at $658.76 23 per hour. This amount is in line with approved effective hourly rates by the Ninth Circuit. 24 Kellogg v. Astrue, No. CV 09-00982-PHX-JAT, 2013 WL 5236638, at *2 (D. Ariz. Sept. 25 17, 2013) (lowering § 406(b) fee award to reflect a rate of $750 an hour to render the 26 request reasonable). 27 Moreover, there is no indication in the record of any substandard performance by 28 Plaintiff’s counsel. Counsel successfully convinced the Court to remand Plaintiff’s case to the Social Security Administration. After further proceedings, the Commissioner found 2|| Plaintiff disabled and eligible for benefits. There is no indication of substandard || performance or undue delay by Mr. Caldwell in prosecuting Plaintiff's case. Crawford v. 4|| Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009). There is also no indication of “fraud or 5 || overreaching in the making of the 25% contingent-fee agreement ].” Jd. 6 Thus, upon consideration of the Gisbrecht reasonableness factors, in addition to the || risk involved in the contingency fee arrangement in this case, the Court concludes that a || fee award of $21,673.25 is reasonable. Because Plaintiff was also awarded EAJA fees, 9|| (Doc. 24), counsel must refund the lesser of the two fees to Plaintiff. 10] I. CONCLUSION 11 Accordingly, 12 IT IS ORDERED that Plaintiff's Attorney’s Motion for an Award of Attorney’s 13 || Fees under 42 U.S.C. § 406(b) (Doc. 25) is GRANTED in the amount of $21,673.25. 14 IT IS FURTHER ORDERED that Plaintiffs counsel shall, after receipt of the 15 || above-awarded fee, refund to Plaintiff the fee previously awarded under the Equal Access to Justice Act, in the amount of $6,827.14. 17 Dated this 9th day of March, 2022. 18 19 i C 20 _ James A. Teil Org Senior United States District Judge 22 23 24 25 26 27 28

-3-