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Francisco Barajas v. Michael J. Astrue

March 6, 2013

FRANCISCO BARAJAS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Hayes, Judge:

ORDER

The matter before the Court is the Application for Award of Attorney Fees (ECF No. 41) filed by Plaintiff Francisco Barajas' counsel, Joel D. Leidner ("Counsel").

BACKGROUND

On November 10, 2010, Plaintiff Francisco Barajas filed a Complaint against the Commissioner of Social Security challenging the denial of his claim for disability insurance benefits and supplemental security income. (ECF No. 1).

On August 15, 2011, the Court granted Defendant's ex parte motion to remand, denied Plaintiff's motion for summary judgment as moot, and remanded this case to the Commissioner of Social Security for further proceedings. (ECF No. 31).

On September 29, 2011, Counsel filed an Application for Attorney Fees Under the Equal Access to Justice Act ("EAJA"). (ECF No. 34). On September 30, 2011, Counsel amended his Application. (ECF No. 36). On November 4, 2011, the Court granted the Application and awarded Counsel "$7,282.63, which is comprised of 40.65 attorney hours." (ECF No. 40).

On remand from this Court, the Administrative Law Judge ("ALJ") issued a decision "fully favorable" to Plaintiff. (ECF No. 41-3 at 4). The ALJ found that Plaintiff "has been disabled from November 4, 2004, through the date of this decision." Id. The ALJ approved a "fee agreement between [Plaintiff] and his representative subject to the condition that the claim results in past-due benefits...." Id. at 3.

On May 17, 2012, Plaintiff received a "Notice of Award" letter from the Social Security Administration, which stated: "We are writing to let you know that you are entitled to monthly disability benefits from Social Security beginning May 2006." (ECF No. 41-1 at 1). The letter stated: "Your representative may ask the court to approve a fee no larger than 25 percent of past due benefits. Past due benefits are those payable through January 2012, the month before the court's decision. For this reason, we are withholding $20,493.00...." Id. at 3.

On January 3, 2013, Counsel filed an Application for Award of Attorney Fees pursuant to 42 U.S.C. § 406(b)(1)(A). (ECF No. 41). Counsel attests that he mailed a copy of the Application to Plaintiff. (ECF No. 41 at 11). The record reflects that Plaintiff has not filed any objection. On February 14, 2013, Defendant filed a Statement of Non-Opposition, stating that "[t]he Commissioner of Social Security has no objection to the fee request." (ECF No. 42).

DISCUSSION

Based upon a contingency-fee agreement entered into with Plaintiff, Counsel requests an award of $20,493.00, i.e. 25% of Plaintiff's past-due benefits award. (ECF No. 41 at 1). Counsel states that "[u]pon receipt of the fee, I will promptly send Mr. Barajas ... $7,282.63," the amount that this Court awarded to Plaintiff pursuant to the EAJA on November 4, 2011. Id. at 11. Counsel contends that his request is reasonable pursuant to the method proscribed by the Supreme Court in Gisbrecht v. Barnhart, 535 U.S. 789 (2002) for computing fee awards in social security cases.

Attorneys are entitled to fees for cases in which they have successfully represented social security claimants:

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, and the Commissioner of Social Security may ... certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits.

42 U.S.C. § 406(b)(1)(A). An award under § 406(b) is paid out of the claimant's past-due benefits, while an EAJA award is paid by the government. See Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991), abrogated on other ...


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