The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge
ORDER AWARDING ATTORNEY FEES PURSUANT TO 42 U.S.C. §406(b)
I INTRODUCTION On August 25, 2009, this matter was reassigned to the undersigned, due to the unavailability of the judicial officer. On August 27, 2009, the parties filed a Statement of Consent to Proceed Before a United States Magistrate Judge Pursuant to Title 28 U.S.C. §636(c).
Now pending before the Court is the "Joint Petition for Approval of Attorney's Fees Under 42 U.S.C. §406(b)," filed by Plaintiff's counsel ("Fee Motion"). The Court has also received and reviewed "Defendant's Response to Plaintiff's Counsel's Petition for Attorney's Fees Under 42 U.S.C. §406(b)" ("Response"), and, finally, Petitioner's "Reply in Support of Petition for Approval of Attorney's Fees Under 42 U.S.C. §406(b)" ("Reply").
The procedural history of this matter is summarized in the Response and will be briefly set forth here. Plaintiff Allen Lingenfelter ("Plaintiff") filed an application for disability insurance benefits and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act on August 19, 1997. After Plaintiff's claims were administratively denied, he filed a complaint and the instant action commenced pursuant to 42 U.S.C. §§405(g) and 1383(c)(3).
On September 19, 2004, the Court accepted and adopted the Magistrate Judge's Report and Recommendation and issued an Order and Judgment affirming the Commissioner's final decision. Plaintiff filed an appeal on November 5, 2004. The matter was briefed, and oral argument was heard. Thereafter, the Ninth Circuit reversed and remanded the matter for calculation and award of benefits. Lingenfelter v. Astrue, 504 F.3d 1028 (9th Cir. 2007).
As documented in the Fee Motion, Plaintiff was awarded past-due benefits of $136,845.00. (Fee Motion, Exhibit ["Ex."] 2.) In addition, past-due child's benefits were awarded to Amber L. Lingenfelter ("minor") in the amount of $24, 936.00. (Id. Ex. 3.) The Commissioner has withheld $34,211.25 from the past-due benefits awarded to Plaintiff, and $8,312.00 from past-due benefits awarded to the minor, for a total of $42,523.25. Plaintiff's counsel seeks an award in that amount pursuant to 42 U.S.C. §406(b). It appears that no prior or other award of fees has been made.
The Commissioner filed a response which neither opposes nor supports the petition. Rather, the Commissioner's position is only that the requested fee of $42,523.25 must be "reasonable" under the guidelines enunciated in Gisbrecht v. Barnhart, 535 U.S. 789, 122 S.Ct. 1817, 152 L.Ed. 2d 996 (2002).
II. DISCUSSION AND ANALYSIS
Plaintiff's counsel brings this petition pursuant to 42 U.S.C. §406(b), which provides in relevant part:
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.
In Gisbrecht, supra, the Supreme Court resolved a division among the federal circuits on the appropriate method of calculating attorney fees under §406(b). Rejecting the "lodestar method" which several of the circuits (including the Ninth Circuit) had been applying, the Supreme Court held:
[Section] 406(b) does not displace contingent-fee agreements as the primary means by which fees are set for successfully representing Social Security benefits claimants in court. Rather, §406(b) calls for court review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases. Congress has provided one boundary line: Agreements are unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits... Within the 25 percent boundary,...the attorney for the successful claimant must show that the fee sought is reasonable for the services rendered. 122 S.Ct. at 1828 (emphasis added).
In determining whether the $42,523.25 award sought by Plaintiff's counsel is "reasonable for the services rendered" here, the Court has considered a number of factors, which will be discussed herein.
The Court first notes that Plaintiff's counsel represented Plaintiff both in the litigation in the United States District Court, and in the appeal to the Ninth Circuit. It appears that past-due benefits were awarded to the minor based upon the success of Plaintiff's case in the Ninth Circuit. Indeed, a review of the hours expended by Plaintiff's counsel (Ex. 4 to Fee Motion) indicates that all legal services were performed in Plaintiff's case, but none on behalf of the minor. Although, of course, the award of past-due benefits to the minor is an indirect byproduct of the success of Plaintiff's counsel in obtaining past-due benefits for Plaintiff, nevertheless, the Court considers it a relevant factor that no specific legal services were provided by Plaintiff's counsel ...