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Gates v. Berryhill

United States District Court, C.D. California

July 21, 2017

KIMBERLY GATES, Plaintiff,
v.
NANCY A. BERRYHILL[1], Acting Commissioner of Social Security, Defendant.

          ORDER GRANTING MOTION FOR ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(B)

          HONORABLE KENLY KIYA KATO United States Magistrate Judge

         I. INTRODUCTION

         Plaintiff Kimberly Gates's (“Plaintiff's”) counsel, Erika Bailey Drake of Drake & Drake, P.C. (“Counsel”), filed a Motion for Attorney's Fees Pursuant to 42 U.S.C. § 406(b) (“Motion”). The Motion seeks an award in the amount of $25, 082.25 for representing Plaintiff in an action to obtain Supplemental Security Income (“SSI”) and Disability Insurance Benefits (“DIB”), with a refund to Plaintiff of $3, 300.00 for the Equal Access to Justice Act (“EAJA”) fees previously awarded.

         The parties have consented to the jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(c). For the reasons stated below, the Court grants the Motion.

         II. RELEVANT BACKGROUND

         On January 13, 2014, Plaintiff filed the Complaint in this action. See ECF Docket No. (“Dkt.”) 3, Compl. Plaintiff alleged defendant Carolyn B. Colvin, Acting Commissioner of Social Security (“Defendant”) improperly denied Plaintiff's applications for SSI and DIB. Id. at 2-3. On October 15, 2014, the Court found Defendant erred in denying Plaintiff benefits, and entered Judgment reversing and remanding the case to Defendant for further administrative proceedings. Dkt. 25, Judgment.

         On December 22, 2014, the Court awarded Counsel EAJA fees in the amount of $3, 300.00. Dkt. 27, Order Granting EAJA Fees.

         On June 30, 2017, pursuant to 42 U.S.C. § 406(b), Counsel filed the instant Motion seeking the amount of $25, 082.25 for representing Plaintiff in the underlying proceedings before the Court. Dkt. 28, Mot. In the Motion, Counsel states she “will refund to Plaintiff EAJA fees previously awarded in the amount of $3, 300.” Id. at 1. According to Counsel, 17.7 hours of attorney time were expended on Plaintiff's case. Itemized Hours, Dkt. 28, Ex. 3. Counsel, therefore, seeks compensation pursuant to a contingency fee agreement stating Plaintiff “will pay representative a fee equal to the lesser of 25% of [Plaintiff's] past-due benefits or the dollar amount established pursuant to 42 USC Section 206(a)(2)(A), which is currently set at, $6, 000, but may be increased from time to time by the Commissioner of Social Security.” Contingency Fee Agreement, Dkt. 28, Ex. 2.

         On June 30, 2017, Plaintiff was served with the Motion and informed she had a right to file a response to the Motion. Dkt. 25, Mot. at 2, 9. Plaintiff failed to file a timely response. On July 6, 2017, Defendant filed a Non-Opposition to the Motion stating she “has no objection to the fee request.” Dkt. 29, Non-Opposition at 4. Thus, the Court deems this matter submitted.

         III. DISCUSSION

         A. APPLICABLE LAW

Pursuant to 42 U.S.C. § 406(b) (“Section 406(b)”): 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). Thus, “a prevailing [disability] claimant's [attorney's] fees are payable only out of the benefits recovered; in amount, such fees may not exceed 25 percent of past-due benefits.” Gisbrecht v. Barnhart, 535 U.S. 789, 792, 122 S.Ct. 1817, 152 L.Ed.2d 996 (2002).

         Where a claimant entered into a contingent fee agreement with counsel, a court must apply Section 406(b) “to control, not to displace, fee agreements between Social Security benefits claimants and their counsel.” Id. at 793. A court should not use a “lodestar method, ” under which a district court “determines a reasonable fee by multiplying the reasonable hourly rate by the number of hours reasonably expended on the case.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (en banc) (citation omitted). Rather, where the claimant and counsel entered into a lawful contingent fee agreement, courts that use the “lodestar” method as the starting point to determine the reasonableness of fees requested under Section 406(b) improperly “reject the ...


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