United States District Court, C.D. California
ORDER GRANTING MOTION FOR ATTORNEY FEES PURSUANT TO
42 U.S.C. § 406(B)
HONORABLE KENLY KIYA KATO United States Magistrate Judge
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.
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
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,
December 22, 2014, the Court awarded Counsel EAJA fees in the
amount of $3, 300.00. Dkt. 27, Order Granting EAJA Fees.
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.
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.
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).
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 ...