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Montellano v. Astrue

September 23, 2009


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


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.


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


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 ...

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