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Montellano v. Astrue

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


September 23, 2009

ANGEL N. MONTELLANO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER SOCIAL SECURITY ADMINISTRATION, DEFENDANT.

The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge

ORDER RE "PLAINTIFF'S PETITION FOR APPROVAL OF ATTORNEY'S FEES OF PURSUANT TO 406(b) OF THE SOCIAL SECURITY ACT" PROCEEDINGS

On August 7, 2009, counsel for Plaintiff filed a "Memorandum of Points and Authorities in Support of Plaintiff's Petition for Approval of Attorney's Fees Pursuant to § 406(b) of the Social Security Act" ("the Petition"), seeking $5,911.85 in fees. Defendant filed a response on September 4, 2009 ("the Response"), purportedly taking no position as to whether the requested fee is reasonable, but setting forth Defendant's analysis for the Court's consideration. The Court has taken the Petition under submission without oral argument. See L.R. 7-15; August 10, 2009 Minute Order.

BACKGROUND

Plaintiff filed a complaint on January 7, 2005, seeking review of the Commissioner's denial of social security benefits. Following Defendant's answer, Plaintiff and Defendant filed motions for summary judgment. On August 3, 2005, the Court denied the motions and remanded the case for further administrative proceedings to consider further the opinion of Plaintiff's treating physician. See August 3, 2005 "Memorandum Opinion and Order of Remand."

Following remand, the Administration conducted proceedings that resulted in a favorable decision for Plaintiff and an award of past-due Title II and XVI benefits from May 2005, totaling approximately $53,180.30. See Petition, Exhibit D.*fn1 Counsel now moves for $5,911.85 in fees for time spent before the Court pursuant to 42 U.S.C. section 406(b) and the parties' fee agreement. See Petition, p. 1; Petition, Exhibit A (fee agreement providing for attorney fees of 25 percent of past-due benefits).*fn2 Counsel acknowledges that any fee award must be offset by the $2,300 in attorney fees that counsel previously recovered under the Equal Access to Justice Act ("EAJA"). See Petition, p. 2; Petition, Exhibit B; 28 U.S.C. § 2412.*fn3

APPLICABLE LAW

The issue before the Court is whether the fee request is reasonable. Section 1383(d)(2) incorporates section 406(b) to the same extent section 406(b) applies to Title II cases, so the reasonableness framework used to evaluate section 406(b) fee requests instructs the Court's review. Under 42 U.S.C. section 406(b), the Court may allow attorney fees in a "reasonable" amount, not to exceed 25 percent of the total past-due benefits awarded to the claimant.*fn4

The Court has an independent duty to ensure that a section 406(b) contingency fee is reasonable. See id.; Gisbrecht v. Barnhart, 535 U.S. 789 (2002) ("Gisbrecht").

The United States Supreme Court has explained that 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 this 25 percent boundary... the attorney for the successful claimant must show that the fee sought is reasonable for the services rendered.

Gisbrecht v. Barnhart, 535 U.S. at 807 (citations omitted).

The hours spent by counsel representing the claimant and counsel's "normal hourly billing charge for non-contingent-fee cases" may aid "the court's assessment of the reasonableness of the fee yielded by the fee agreement." Id. at 808. When a contingency fee falls within the 25 percent boundary, as here, the Court appropriately may reduce counsel's recovery:

... based on the character of the representation and the results the representative achieved. If the attorney is responsible for delay, for example, a reduction is in order so that the attorney will not profit from the accumulation of benefits during the pendency of the case in court. If the benefits are large in comparison to the amount of time counsel spent on the case, a downward adjustment is similarly in order.

Id. (citations omitted); see also Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976) (identifying factors relevant to adjustment of an attorney's lodestar figure).

DISCUSSION

Having reviewed the papers on file in this case in light of Gisbrecht and its progeny, the Court finds that "the fee sought is reasonable for the services rendered." The $5,911.85 fee sought, together with the section 406(a) fees recovered, is less than or equals the agreed-upon 25 percent of past-due benefits. The fee is not unreasonable given the number of hours counsel spent in representing Plaintiff before this Court. Neither "the character of the representation" nor "the results the representative achieved" suggest the unreasonableness of the fee sought. Plaintiff's counsel was not responsible for any significant delay in securing Plaintiff's benefits.

Counsel reasonably spent a total of 17.60 hours representing Plaintiff before this Court. See Petition, Exhibit F. If counsel receives the $5,911.85 fee requested, counsel will receive a de facto fee equivalent to $335.90 per hour for time spent before the Court. This Court previously has found rates greater than this de facto rate to be reasonable for section 406(b) fee requests. See, e.g., Hodges v. Astrue, Case No. CV 05-2829-E, Opinion and Order Granting in Part Counsel's Petition for Attorney Fees Pursuant to 42 U.S.C. Section 406(b), filed March 28, 2008 (where counsel had not reported any standard hourly rates, choosing a standard or prevailing hourly rate of $250 for counsel (multiplied by a factor of 2.5 for a de facto hourly rate of $625) as reasonable); Barry v. Astrue, Case No. CV 04-649-E, Opinion and Order Granting in Part Counsel's Petition for Attorney Fees Pursuant to 42 U.S.C. Section 406(b), filed December 10, 2007 (same); Cherry v. Astrue, Case No. EDCV 05-393-E, Opinion and Order Granting in Part Counsel's Petition for Attorney Fees Pursuant to 42 U.S.C. Section 406(b), filed December 3, 2007 (same); Wood v. Astrue, Case No. CV 01-7622-E, Order Granting in Part Counsel's Petition for Attorney Fees Pursuant to 42 U.S.C. § 406(b), filed June 11, 2007 (same); see also Gisbrecht, 535 U.S. at 808 (counsel's normal hourly billing rates can aid court's interpretation of reasonableness); Hodges-Williams v. Barnhart, 400 F. Supp. 2d 1093, 1099-1100 (N.D. Ill. Dec. 6, 2005) (reducing fees to a de facto hourly rate judge deemed reasonable based on judge's own experience in private practice and with the court); Lewis v. Barnhart, 2004 WL 3454545 *1 (W.D. Va. Jun. 11, 2004) (reducing fees to de facto hourly rate generally approved by court in noncontingency fee cases).

Under the totality of the circumstances, comparison of the benefits secured and the time Plaintiff's counsel spent on the case does not suggest the unreasonableness of the fee sought.

CONCLUSION

The Petition is granted. Section 406(b) and 1383 fees are allowed in the amount of $5,911.85. Counsel shall reimburse Plaintiff in the amount of $2,300, previously paid by the Government under the EAJA.

IT IS SO ORDERED.


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