(SS) Elliott v. Commissioner of Social Security

Opinion

TARILYN TRACY ELLIOTT, Case No. 2:21-cv-1202-JDP Plaintiff, v. ORDER MARTIN O’MALLEY, Commissioner of Social Security, Defendant. Plaintiff’s counsel seeks an award of attorney fees under 42 U.S.C. § 406(b).1 ECF No. 22. Plaintiff entered into a contingent fee agreement providing that she would pay counsel twenty-five percent of any award of past-due benefits. ECF No. 22-3 at 1. After this court remanded for further proceedings, plaintiff was found disabled and awarded $113,713.70 past- due benefits. ECF No.22-1 at 3. Plaintiff’s counsel’s request $21,200.00 in attorney fees, which is less than the statutory maximum, and which would work out to an effective hourly rate of $550.64. An attorney is entitled to reasonable fees for successfully representing social security claimants in district court. 1 Although the motion for fees was filed under plaintiff’s name, plaintiff’s counsel is the 21cvreal party in interest. See Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002). Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment 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 by reason of such judgment. 42 U.S.C. § 406(b)(1)(A). Rather than being paid by the government, fees under section 406(b) are paid by the claimant from the awarded past-due benefits. Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (citing Gisbrecht, 535 U.S. at 802). The twenty-five percent statutory maximum fee is not an automatic entitlement; the court must ensure that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808-09 (“We hold that § 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those agreements.”). In assessing whether a fee is reasonable, the court should consider “the character of the representation and the results the representative achieved.” Id. at 808. A “court may properly reduce the fee for substandard performance, delay, or benefits that are not in proportion to the time spent on the case.” Crawford, 586 F.3d at 1151. The court finds that the requested fees are reasonable. Counsel’s billing records reflect a total of 38.5 hours of attorney time on this case. ECF No. 22-4 at 1. Counsel’s request for $21,200.00, which is the equivalent to less than the statutory maximum, would constitute an hourly rate of approximately $550.64 for attorney services. Counsel did not engage in dilatory conduct or perform in a substandard manner. Indeed, counsel’s representation resulted in this matter being remanded for further proceedings, which resulted in a favorable decision and an award of benefits. See ECF Nos. 18 & 22. Given counsel’s experience, the result obtained in this case, and the risk of loss in representing plaintiff, the court finds the hourly rate reasonable. See, e.g., De Vivo v. Berryhill, 2018 WL 4262007 (E.D. Cal. Sept. 6, 2018) (awarding fees at effective hourly range of $1,116.26); Jamieson v. Astrue, 2011 WL 587096 (E.D. Cal. Feb. 9, 2011) (finding fees at effective hourly rate of $1,169.49 reasonable); 2016 WL 4248557 (S.D. Cal. Aug. 11, 2016) (awarding fees at effective hourly rate of $1,063); Palos v. Colvin, 2016 WL 5110243 (C.D. Cal. Sept. 20, 2016) ) (finding fees at effective hourly rate of $1,546.39 reasonable). Counsel concedes that the $8,293.66 award should be offset by the fees previously awarded under the under the Equal Access to Justice Act (“EAJA”). ECF No. 22 at 5; see ECF No. 21. He also indicates that he will reimburse plaintiff the amount previously awarded under the EAJA. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002) (holding that where attorney’s fees are awarded under both EAJA and § 406(b), the attorney must refund the smaller of the two awards to the plaintiff). Accordingly, it is hereby ORDERED that: 1. The motion for attorney fees, ECF No. 22, is granted. 2. Plaintiffs counsel is awarded $21,200.00 in fees pursuant to 42 U.S.C. § 406(b). 3. Upon receipt of the $21,200.00 award, counsel shall refund to plaintiff the sum of $8,293.66 previously awarded under the EAJA. ( ie — Dated: _ November 21, 2024 Q_—_—. JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE