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Wendell W. Cummins v. Michael J. Astrue


June 8, 2011


The opinion of the court was delivered by: Jennifer L. Thurston United States Magistrate Judge


Denis Bourgeois Haley, ("Counsel") attorney for Plaintiff Wendell Cummins, seeks an award of attorney fees pursuant to 42 U.S.C. § 406(b). (Doc. 30). Defendant has not opposed the motion.*fn1 For the following reasons, the motion for attorney fees is GRANTED.

I. Factual and Procedural History

Plaintiff and Counsel entered into a contingent fee agreement, which provided Plaintiff would pay twenty-five percent of any awarded past due benefits on February 9, 2007. (Doc. 30, Exh. 1).

On February 8, 2007, Plaintiff filed a complaint for review of the administrative decision denying him benefits. (Doc. 1). The Court concluded the decision was not supported by substantial evidence in the record and issued an order remanding the case pursuant to 42 U.S.C. § 405(g) for further consideration on September 11, 2008. (Doc. 25). Following the entry of judgment in favor of Plaintiff (Doc. 26), the parties stipulated to an award of $3,450 in attorney fees pursuant to the Equal Access Justice Act (Doc. 28), which was awarded on February 26, 2009 (Doc. 29).

On January 14, 2011, Plaintiff received a notice of a "fully favorable decision" from an administrative law judge. (Doc. 30, Exh. 2). Plaintiff received a "Notice of Award," which indicated he was entitled to retroactive benefits beginning September 2005. (Doc. 30, Exh. 3).

II. Attorney Fees under § 406(b)

An attorney may seek an award of attorney fees for representation of a Social Security claimant who is awarded benefits:

Whenever a court renders a judgment favorable to a claimant under [42 USC § 401, et seq] 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); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) controls fees awarded for representation of Social Security claimants). A contingency fee agreement is unenforceable if it provides for fees exceeding twenty-five percent of past-due benefits. Id. at 807.

III. Discussion and Analysis

District courts "have been deferential to the terms of contingency fee contracts § 406(b) cases." Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Ca. 2003). However, the Court must review contingent-fee arrangements "as an independent check, to assure that they yield reasonable results in particular cases." Gisbrecht, 535 U.S. at 807. In doing so, the Court should consider "the character of the representation and the results the representative achieved." Id. at 808. In addition, the Court should consider whether the attorney performed in a substandard manner or engaged in dilatory conduct or excessive delays, and whether the fees are "excessively large in relation to the benefits received." Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc).

In this case, Plaintiff willingly entered into the contingent fee agreement in which he agreed to pay twenty-five percent of any awarded retroactive benefits. Counsel accepted the risk of loss in the representation and spent 23.7 hours on the case. (Doc. 30 at 3). Counsel provided a record of the time spent on the matter, which establishes the amount of time spent on the case was reasonable. (Doc. 30, Exh. 4).

As a result of Counsel's work, she secured a remand of the matter to an administrative law judge, and, ultimately, the award of benefits to Plaintiff. For this, Counsel requests a fee of $9,000 under the fee contract. This is much less that the amount to which she would be entitled under the contract. Because Plaintiff expects to receive $59,038.50 in benefits, $14,759.63 would be awardable under the agreement. Id. Because $3,450.00 was paid under the EAJA, the net cost to Plaintiff is $5,550.00. Notably, Plaintiff and Defendant did not oppose the motion, thereby indicating their belief that the fees requested are reasonable.

IV. Conclusion and Order

The fees sought by Counsel are reasonable and not in excess of the twenty-five percent maximum permitted under 42 U.S.C. §406(b). Further, there is no indication Counsel performed in a substandard manner or engaged in dilatory conduct.

Based upon the foregoing, IT IS HEREBY ORDERED:

1. Counsel's motion for attorney fees pursuant to §406(b) in the amount of $9,000 is GRANTED;

2. The Commissioner SHALL certify the fee award, in the amount of $9,000, to be paid directly to Counsel; and

3. Counsel SHALL refund $3,450 to Plaintiff Wendell Cummins.


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