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Delbert Sizelove v. Michael J. Astrue


August 24, 2012


The opinion of the court was delivered by: Jeremy Fogel United States District Judge

**E-Filed 8/24/2012**


Plaintiff's counsel seeks an award of attorneys' fees pursuant to 42 U.S.C. § 406(b). For the reasons discussed below, the motion will be granted. 22


On November 7, 2005, Plaintiff Delbert Sizelove ("Sizelove") filed a complaint in this Court challenging the Commissioner's denial of Supplemental Security Income ("SSI") benefits. Dkt. 25 Entry 1. On March 29, 1997, this Court granted in part Sizelove's motion for summary judgment 26 and remanded the matter to the Commissioner for further proceedings. Dkt. Entry 25. On February 27 13, 2008, an Administrative Law Judge ("ALJ") issued a favorable decision finding Sizelove 28 disabled as of January 21, 2003 and entitled to a period of SSI benefits. Mot. Exh. A. As a result of that decision, Sizelove became entitled to retroactive benefits in the amount of $52,259. Mot. Exh. 2

B. 3

4 fees pursuant to 42 U.S.C. § 406(b). Dkt. Entry 32. The Commissioner filed a response on January 5 7-1(b). 7

EAJA and the SSA.*fn1 " Cantrell v. Astrue, 639 F. Supp. 2d 1033, 1035 (N.D. Cal. 2009). "While 10 the government pays an award pursuant to the EAJA, an award pursuant to § 406 of the SSA is paid out of a successful claimant's past-due benefits." Id. If an attorney is awarded fees under both the EAJA and § 406, the attorney must refund to the claimant the amount of the EAJA award up to the 13 point that the claimant receives one hundred percent of the past-due benefits. Gisbrecht v. Barnhart, 14 Section 406 provides in relevant part that, "Whenever a court renders a judgment favorable 16 to a claimant under this subchapter who was represented before the court by an attorney, the court 17 may determine and allow as part of its judgment a reasonable fee for such representation, not in 18 excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason 19 of such judgment." 42 U.S.C. § 406(b)(1)(A). Even when the fees sought are within the twenty-20 five percent statutory maximum, the attorney must show that the proposed award "is reasonable for 21 the services rendered." Gisbrecht, 535 U.S. at 807. 22

The Court looks first to the contingent-fee agreement, then determines whether a reduction 23 of the agreed-upon fees may be appropriate. Id. at 808. Circumstances to be considered include 24 whether the attorney is responsible for a delay in the proceedings, whether the past-due benefits are 25 large in comparison to the amount of time counsel spent on the case, and the attorney's normal 26 hourly billing charge for non-contingent-fee cases. Id. 27

On December 22, 2011, Sizelove's attorney, Harvey Sackett, filed a motion for attorneys' 4, 2012. Dkt. Entry 34. The matter thereafter was submitted without oral argument. See Civ. L.R. 6


"Attorneys handling social security proceedings may seek fees for their work under both the 535 U.S. 789, 796 (2002).

Sizelove entered into a contingent-fee agreement under which he agreed to pay Mr. Sackett "a fee no greater than 25% of the past-due benefits owed to me" in the event of a favorable decision. 2

Mot. Exh. C. As noted above, Sizelove has been awarded past-due benefits in the amount of 3 $13,064.75. The Court concludes that this amount is reasonable. Mr. Sackett is a very experienced 5 attorney who represents that he has practiced exclusively in the area of Social Security law for more 6 than thirty years. He spent 32.05 hours preparing for litigation and litigating the case in district 7 court. Mot. Exh. E. Accordingly, Mr. Sackett's effective hourly rate if awarded the full amount of 8 fees sought would be $407.64 ($13,064.75 32.05 hours = $407.64 per hour). This hourly rate is 9 well within the median hourly rates for attorneys with his experience practicing in the Bay Area. 10 entitled to a $450 hourly rage given his experience and results obtained. See Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003). Mr. Sackett obtained a very favorable result for 13 $52,259. Mot. Exh. B. Mr. Sackett seeks an award of twenty-five percent of this amount, or 4 See Mot. Exh. F. One other court within this district previously concluded that Mr. Sackett was Sizelove; his claim had been denied initially, upon reconsideration, upon hearing by an ALJ, and 14 upon review by the Appeals Council, but upon remand he was awarded in excess of $50,000 in past-15 due benefits. Taking into account all of the circumstances of this case, the Court concludes that an 16 award of $13,064.75 in attorneys' fees is reasonable. 17

$4,750 pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). Dkt. Entry 27. The Court 19 approved that stipulated request on June 14, 2007. Dkt. Entry 28. Accordingly, upon receiving the 20 attorneys' fees awarded under § 406(b), Mr. Sackett must refund to Sizelove the $4,750 awarded 21 under the EAJA. 22

The Court presumes that Mr. Sackett informed his client of the motion. However, this order is 24 without prejudice to a motion for reconsideration by Sizelove if he in fact objects to the fee. 25

ALJ's favorable decision and almost two years after the Notice of Change in Payment regarding 27

On June 5, 2007, the parties filed a stipulated request for attorneys' fees in the amount of 18

The Court notes that the docket does not reflect service of the present motion upon Sizelove.

Finally, the Court notes that the present motion was filed more than three years after the Sizelove's entitlement to benefits was issued on January 18, 2010. Mr. Sackett explains that the 28 staff member responsible for calendaring in this case left his firm in January 2011, and that the documents indicating that the motion should be filed later were discovered in a banker's box of 2 papers that the employee had left behind. Mot. at 2 n.2. The Ninth Circuit has not addressed the 3 issue of timeliness with respect to § 406(b) motions. Some circuits have required a motion for 4 attorneys' fees to be filed within fourteen days after the entry of judgment, see, e.g., Pierce v. 5 Barnhart, 440 F.3d 657, 663-64 (5th Cir. 2006), while others have required only that the motion be 6 filed within a "reasonable time," see McGraw v. Barnhart, 450 F.3d 493, 505 (10th Cir. 2006). 7

Under the circumstances, and absent Ninth Circuit authority to the contrary, this Court concludes 8 that the "reasonable time" approach is most appropriate. Given Mr. Sackett's explanation, the Court 9 will deem the application for fees under § 406(b) to be timely. 10


For the reasons set forth above, the motion is granted. Mr. Sackett is awarded $13,064.75 in United States District Court attorneys' fees. Mr. Sackett shall reimburse Sizelove in the amount of $4,750 (representing the 13 EAJA fees previously awarded).

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