(SS) Hamm v. Commissioner of Social Security

Opinion

JACK HAMM, Case No. 2:21-cv-00645-JDP Plaintiff, ORDER v. GRANTING PLAINTIFF’S COUNSEL ATTORNEY FEES UNDER 42 U.S.C. MARTIN O’MALLEY, § 406(b) COMMISSIONER OF SOCIAL SECURITY, ECF No. 26 Defendant. Plaintiff’s counsel seeks an award of attorney fees under 42 U.S.C. § 406(b).1 ECF No. 26. Plaintiff entered into a contingent fee agreement that provided that he would pay counsel twenty-five percent of any award of past-due benefits. ECF No. 26-2. After this court remanded the action for further proceedings, plaintiff was found disabled and awarded $47,601.72 in past- due benefits. See ECF No. 21; ECF No. 26-1. Counsel now seeks attorney fees in the amount of $11,900.00, which is equal to twenty-five percent of total past-due benefits that plaintiff was awarded, with a credit to plaintiff for the fees previously awarded under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), in the amount of $6,500.00. ECF No. 26; see also ECF No. 25. 1 Although the motion for fees was filed under plaintiff’s name, plaintiff’s counsel is the real party in interest. See Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002). An attorney is entitled to reasonable fees for successfully representing social security claimants in district court. 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 30 hours of attorney time on this case. ECF No. 26 at 5-6; see also ECF No. 23 at 3-5. Counsel’s request for $11,900.00, which is the equivalent of the statutory maximum, would constitute an hourly rate of approximately $396.67 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. 13, 21. 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). Accordingly, it is hereby ORDERED that: 1. The motion for attorney fees, ECF No. 26, is granted. 2. Plaintiffs counsel is awarded $11,900.00 in fees pursuant to 42 U.S.C. § 406(b). 3. Plaintiff’s counsel is directed to reimburse plaintiff the sum of $6,500.00 for previously paid EAJA fees pursuant to 28 U.S.C. § 2412(d). ( 1 Ow — Dated: _ April 4, 2024 q_———. JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE