United States District Court, E.D. California
ADRIAN F. MURPHY, Plaintiff,
NANCY A. BERYHILL, Acting Commissioner of Social Security, Defendant.
ALLISON CLAIRE, UNITED STATES MAGISTRATE JUDGE
sought judicial review of a final decision of the
Commissioner of Social Security (“Commissioner”),
denying her the application for a period of disability and
disability insurance benefits (“DIB”) benefits
under Title II of the Social Security Act (“the
Act”). On September 25, 2015, the court granted in part
plaintiff's motion for summary judgment, denied the
Commissioner's cross-motion for summary judgment, and
remanded the action to the Commissioner for further
proceedings consistent with the order. ECF No. 14.
pending before the court is plaintiff's May 23, 2017
motion for an award of attorney's fees pursuant to 42
U.S.C. § 406(b). ECF No. 19. On May 23, 2017, defendant
filed a response asserting that defendant “is not in a
position to either assent or object” to the fee
request. ECF No. 20. For the reasons set forth below, the
motion will be granted.
REASONABLENESS OF FEE REQUEST
outset of the representation, plaintiff and her counsel
entered into a contingent-fee agreement. ECF No. 19-4.
Pursuant to that agreement plaintiff's counsel now seeks
attorney's fees in the amount of $24, 000, which
represents $14, 839.50 less than 25% of the $159, 273 in
retroactive disability benefits received by plaintiff on
remand ($120, 433.50 paid, plus $38, 839.50 withheld for
attorney's fees), for 26 hours of attorney time expended
on this matter. ECF No. 19-2 at 2-3. Plaintiff's counsel
has put the court and defendant on notice that a separate
petition under § 406(a) of the Act will be later filed
by a separate legal entity that represented plaintiff in her
proceedings before the Social Security Administration for the
remaining $14, 839.50. Id. at ¶ 11. Plaintiff
will be immediately credited the $4, 862.52 in EAJA fees
already received by plaintiff's counsel. ECF No. 19 at 2.
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). “In contrast to fees
awarded under fee-shifting provisions such as 42 U.S.C.
§ 1988, the fee is paid by the claimant out of the
past-due benefits awarded; the losing party is not
responsible for payment.” Crawford v. Astrue,
586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (citing
Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)).
The goal of fee awards under § 406(b) is
“‘to protect claimants against
“inordinately large fees” and also to ensure that
attorneys representing successful claimants would not risk
“nonpayment of [appropriate] fees.”'”
Parrish v. Comm'r of Soc. Sec. Admin., 698 F.3d
1215, 1217 (9th Cir. 2012) (quoting Gisbrecht, 535
U.S. at 805).
statutory maximum fee is not an automatic entitlement, and
the court must ensure that the fee requested is reasonable.
Gisbrecht, 535 U.S. at 808-09 (“406(b) does
not displace contingent-fee agreements within the statutory
ceiling; instead, § 406(b) instructs courts to review
for reasonableness fees yielded by those agreements”).
“Within the 25 percent boundary . . . the attorney for
the successful claimant must show that the fee sought is
reasonable for the services rendered.” Id. at
807. “[A] district court charged with determining a
reasonable fee award under § 406(b)(1)(A) must respect
‘the primacy of lawful attorney-client fee
arrangements, ' ‘looking first to the
contingent-fee agreement, then testing it for
reasonableness.'” Crawford, 586 F.3d at
1149 (quoting Gisbrecht, 535 U.S. at 793, 808).
determining whether the requested fee is reasonable, the
court considers “‘the character of the
representation and the results achieved by the
representative.'” Crawford, 586 F.3d at
1151 (quoting Gisbrecht, 535 U.S. at 808). In
determining whether a reduction in the fee is warranted, the
court considers whether the attorney provided
“substandard representation or delayed the case,
” or obtained “benefits that are not in
proportion to the time spent on the case.” Id.
Finally, the court considers the attorney's record of
hours worked and counsel's regular hourly billing charge
for non-contingent cases. Crawford, 586 F.3d at
1151-52 (citing Gisbrecht, 535 U.S. at 808); see
also, E.D. Cal. R. 293(c)(1) (in fixing attorney's
fees the court considers “the time and labor
required”). Below, the court will consider these
factors in assessing whether the fee requested by counsel in
this case pursuant to 42 U.S.C. § 406(b) is reasonable.
plaintiff's counsel is an experienced attorney who
secured a successful result for plaintiff. See
Declaration of Shanny J. Lee (“Lee Decl.”) (ECF
No. 19-2) ¶ 2-9. There is no indication that a reduction
of fees is warranted due to any substandard performance by
counsel. There is also no evidence that plaintiff's
counsel engaged in any dilatory conduct resulting in
excessive delay. The court finds that $24, 000, which
represents $14, 839.50 less than 25% of the $159, 273 in
past-due benefits paid to plaintiff, is not excessive in
relation to the benefits awarded. In making this
determination, the court recognizes the contingent fee nature
of this case and counsel's assumption of the risk of
going uncompensated in agreeing to represent plaintiff on
such terms. See Crawford, 586 F.3d at 1152
(“[t]he attorneys assumed significant risk in accepting
these cases, including the risk that no benefits would be
awarded or that there would be a long court or administrative
delay in resolving the cases”). Finally, counsel has
submitted a detailed billing statement in support of the
requested fee. ECF No. 19-5.
for the reasons stated above, the court concludes that the
fees sought by counsel pursuant to § 406(b) are
OFFSET FOR EAJA FEES
award of § 406(b) fees must be offset by any prior award
of attorney's fees granted under the Equal Access to
Justice Act (“EAJA”). 28 U.S.C. § 2412;
Gisbrecht 535 U.S. at 796. Here, plaintiffs attorney
was previously awarded $4, 862.52 in EAJA ...