Vanlengen v. Commissioner of Social Security

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 RENA LANE VANLENGEN, 7 Case No. 18-cv-00566-JCS Plaintiff, 8 v. ORDER GRANTING MOTIONS FOR 9 ATTORNEYS’ FEES UNDER THE COMMISSIONER OF SOCIAL EQUAL ACCESS TO JUSTICE ACT 10 SECURITY, AND SECTION 406(B)(1) OF THE SOCIAL SECURITY ACT 11 Defendant. Re: Dkt. Nos. 29, 31 12 13 I. INTRODUCTION 14 Plaintiff Rena VanLengen brought this action seeking review of the final decision of 15 Defendant Andrew M. Saul, Commissioner of the Social Security Administration (the 16 “Commissioner”) denying her applications for Supplemental Security Income (“SSI”) benefits 17 under Title XVI of the Social Security Act. In its July 3, 2019 Order, the Court reversed the 18 decision of the Commissioner and remanded for award of benefits. Plaintiff now brings two fee 19 motions, seeking an award of attorneys’ fees under the Equal Access to Justice Act (“the EAJA 20 Motion”) and under 42 U.S.C. § 406(b) of the Social Security Act (“the 406(b) Motion”). The 21 Commissioner has not opposed the EAJA Motion; in its response to the 406(b) Motion it states 22 that it does not object to Plaintiff’s request for fees under Section 406(b) so long as these fees are 23 offset by any fees awarded under the EAJA. For the reasons stated below, the Court GRANTS 24 both motions.1 25 26 27 II. ANALYSIS 1 A. Legal Standards 2 The scheme established by Congress for attorney fee awards in cases involving social 3 security claims is described by the Supreme Court as follows: 4 Fees for representation of individuals claiming Social Security old- 5 age, survivor, or disability benefits, both at the administrative level and in court, are governed by prescriptions Congress originated in 6 1965. Social Security Amendments of 1965, 79 Stat. 403, as amended, 42 U.S.C. § 406. . . . The statute deals with the 7 administrative and judicial review stages discretely: § 406(a) governs fees for representation in administrative proceedings; § 406(b) 8 controls fees for representation in court. See also 20 CFR § 404.1728(a) (2001). 9 Gisbrecht v. Barnhart, 535 U.S. 789, 793–94 (2002). 42 U.S.C. § 406(b) provides, in relevant 10 part, that “[w]henever a court renders a judgment favorable to a claimant under this subchapter 11 who was represented before the court by an attorney, the court may determine and allow as part of 12 its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the 13 past-due benefits to which the claimant is entitled by reason of such judgment, and the 14 Commissioner of Social Security may . . . certify the amount of such fee for payment to such 15 attorney out of, and not in addition to, the amount of such past-due benefits.” 42 U.S.C. § 406(b). 16 In addition to the fees permitted under § 406(b), the EAJA, enacted in 1980, allows a party 17 who prevails against the United States in court, including a successful Social Security benefits 18 claimant, to receive an award of fees payable by the United States if the Government’s position in 19 the litigation was not “substantially justified.” Gisbrecht, 535 U.S. at 796 (citing 28 U.S.C. § 20 2412(d)(1)(A)). The burden of proving the substantial justification exception to the mandatory 21 award of fees under the EAJA lies with the government. Love v. Reilly, 924 F.2d 1492, 1495 (9th 22 Cir. 1991). In contrast to fees awarded under § 406(b), EAJA fees are based on the “time 23 expended” and the attorney’s “[hourly] rate.” 28 U.S.C. § 2412(d)(1)(B). In Gisbrecht, the 24 Supreme Court explained that “Congress harmonized fees payable by the Government under 25 EAJA with fees payable under § 406(b) out of the claimant’s past-due Social Security benefits in 26 this manner: Fee awards may be made under both prescriptions, but the claimant’s attorney must 27 ‘refun[d] to the claimant the amount of the smaller fee.’” Gisbrecht, 535 U.S. at 796 (quoting Act 1 of Aug. 5, 1985, Pub. L. No. 99–80, § 3, 99 Stat. 186 (1985)). Accordingly, “an EAJA award 2 offsets an award under [42 U.S.C. § 406(b)],” increasing “up to the point the claimant receives 100 3 percent of the past-due benefits.” Id. 4 B. The EAJA Motion 5 In the EAJA Motion, Plaintiff requests $6,686.82 in attorney fees, arguing that she is the 6 prevailing party and that the Commissioner’s position was not substantially justified. As the Court 7 reversed the decision of the Commissioner and remanded for award of benefits, Plaintiff is clearly 8 the prevailing party. Further, the Commissioner did not oppose the motion and therefore has not 9 established that attorneys’ fees should be denied under the EAJA because its position was 10 substantially justified. Finally, the Court has reviewed the time sheets provided by Plaintiff’s 11 counsel and finds that the amount requested is reasonable. Accordingly, the Court GRANTS the 12 EAJA Motion and awards fees in the amount of $6,686.82. The Court further ORDERS that the 13 EAJA fees awarded herein – subject to any offset that the Department of the Treasury determines 14 is appropriate under its Offset Program – shall be made payable to Olinsky Law Group. As 15 discussed below, the Court also awards fees under § 406(b) of the Social Security Act. Therefore, 16 any payment of EAJA fees received by Plaintiff’s counsel shall immediately be remitted to his 17 client, Ms. Vanlengen. 18 C. The 406(b) Motion 19 In the 406(b) Motion, Plaintiff requests $10,144.58 in attorneys’ fees, which represents 20 25% of Plaintiffs past due benefits. Plaintiff has supplied a copy of the retainer agreement 21 reflecting that Ms. Vanlengen agreed to pay contingent fees in the amount of 25% of any back 22 award she received in this action, as well as evidence establishing that this amount represents 25% 23 of the back award. Accordingly, the Court GRANTS the 406(b) Motion and awards $10,144.58 in 24 fees, which shall be payable to the Olinsky Law Group.

25 26 27 I. CONCLUSION For the reasons stated above, the Motions are GRANTED. 2 IT IS SO ORDERED. 3 4 Dated: November 8, 2019 6 JQSEPH C. SPERO 7 ief Magistrate Judge 8 9 10 ll a 12

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