(SS) (CONSENT) Nelson v. Commissioner of Social Security

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHRISTINA MARIE NELSON, No. 2:19-cv-01382 AC 12 Plaintiff, 13 v. ORDER 14 ANDREW SAUL, 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 a period of disability and disability insurance 20 benefits (“DIB”) benefits under Title II of the Social Security Act (“the Act”). On July 7, 2020, 21 the court granted plaintiff’s motion for summary judgment, denied the Commissioner’s cross- 22 motion for summary judgment, and remanded the action to the Commissioner with instructions to 23 award benefits. ECF No. 20. 24 Now pending before the court is plaintiff’s November 18, 2020 motion for an award of 25 attorney’s fees pursuant to 42 U.S.C. § 406(b). ECF No. 24. On December 4, 2020, defendant 26 filed a statement of non-opposition asserting that defendant “is not in a position to either assent or 27 //// 28 //// 1 object” to the fee request. ECF No. 35.1 For the reasons set forth below, the motion will be 2 granted. 3 I. REASONABLENESS OF FEE REQUEST 4 At the outset of the representation, plaintiff and his counsel entered into a contingent-fee 5 agreement. ECF No. 26-1 at 2-3. Pursuant to that agreement plaintiff’s counsel now seeks 6 attorney’s fees in the amount of $22,712.50, which represents 25% of the retroactive disability 7 benefits received by plaintiff on remand, for 35.7 hours of attorney time expended on this matter. 8 ECF Nos. 25 at 8, 26-1 at 5. 9 Attorneys are entitled to fees for cases in which they have successfully represented social 10 security claimants: 11 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 12 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 13 the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security 14 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. 15 16 42 U.S.C. § 406(b)(1)(A). “In contrast to fees awarded under fee-shifting provisions such as 42 17 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing 18 party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) 19 (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The goal of fee awards under 20 § 406(b) is “‘to protect claimants against “inordinately large fees” and also to ensure that 21 attorneys representing successful claimants would not risk “nonpayment of [appropriate] fees.”’” 22 Parrish v. Comm'r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting Gisbrecht, 23 535 U.S. at 805). 24 The 25% statutory maximum fee is not an automatic entitlement, and the court must 25 ensure that the fee requested is reasonable. Gisbrecht, 535 U.S. at 808-09 (“406(b) does not 26 displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts 27 1 Plaintiff’s counsel did not initially include a certification that plaintiff had been served with the 28 motion. This error was corrected. ECF No. 28. 1 to review for reasonableness fees yielded by those agreements”). “Within the 25 percent 2 boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable 3 for the services rendered.” Id. at 807. “[A] district court charged with determining a reasonable 4 fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee 5 arrangements,’ ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 6 Crawford, 586 F.3d at 1149 (quoting Gisbrecht, 535 U.S. at 793, 808). 7 In determining whether the requested fee is reasonable, the court considers “‘the character 8 of the representation and the results achieved by the representative.’” Crawford, 586 F.3d at 1151 9 (quoting Gisbrecht, 535 U.S. at 808). In determining whether a reduction in the fee is warranted, 10 the court considers whether the attorney provided “substandard representation or delayed the 11 case,” or obtained “benefits that are not in proportion to the time spent on the case.” Id. Finally, 12 the court considers the attorney’s record of hours worked and counsel’s regular hourly billing 13 charge for non-contingent cases. Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S. at 14 808); see also, E.D. Cal. R. 293(c)(1) (in fixing attorney’s fees the court considers “the time and 15 labor required”). Below, the court will consider these factors in assessing whether the fee 16 requested by counsel in this case pursuant to 42 U.S.C. § 406(b) is reasonable. 17 Here, plaintiff’s counsel is an experienced attorney who secured a successful result for 18 plaintiff. See Declaration of Shanny Lee (ECF No. 24). There is no indication that a reduction of 19 fees is warranted due to any substandard performance by counsel. There is also no evidence that 20 plaintiff’s counsel engaged in any dilatory conduct resulting in excessive delay. The court finds 21 that the $22,712.50 fee, which represents 25% of the past-due benefits paid to plaintiff, is not 22 excessive in relation to the benefits awarded. In making this determination, the court recognizes 23 the contingent fee nature of this case and counsel’s assumption of the risk of going 24 uncompensated in agreeing to represent plaintiff on such terms. See Crawford, 586 F.3d at 1152 25 (“[t]he attorneys assumed significant risk in accepting these cases, including the risk that no 26 benefits would be awarded or that there would be a long court or administrative delay in resolving 27 the cases”). Finally, counsel has submitted a detailed billing statement in support of the requested 28 fee. ECF No. 26-1 at 5. 1 Accordingly, for the reasons stated above, the court concludes that the fees sought by 2 || counsel pursuant to § 406(b) are reasonable. 3 Il. OFFSET FOR EAJA FEES 4 An award of § 406(b) fees must be offset by any prior award of attorney’s fees granted 5 || under the Equal Access to Justice Act (“EAJA”). 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. 6 | Here, plaintiff’s attorney was previously awarded $6,966.02 in EAJA fees. See ECF No. 23. 7 || Counsel therefore must remit that amount to plaintiff. 8 Accordingly, IT IS HEREBY ORDERED that: 9 1. Plaintiff’s Motion for attorney Fees under 42 U.S.C. § 406(b) (ECF No. 23), is 10 | GRANTED; 11 2. Counsel for plaintiff is awarded 22,712.50 in attorney’s fees under § 406(b); the 12 | Commissioner shall certify that amount to be paid to counsel from the funds previously withheld 13 | for the payment of such fees; and 14 3. Counsel for plaintiff is directed to remit to plaintiff the amount of $ 6,966.02 for EAJA 15 || fees previously paid to counsel by the Commissioner. 16 || DATED: December 15, 2020 ~ 17 Attten— Lhor—e_ ALLISON CLAIRE 18 UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28