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Perry v. Commissioner of Social Security

United States District Court, E.D. California

August 31, 2017

PATRICIA IRENE PERRY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER GRANTING PETITIONER'S MOTION FOR ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(B) (ECF NO. 34)

         Petitioner Jacqueline A. Forslund (“Counsel”), attorney for Plaintiff Patricia Irene Perry (“Plaintiff”), filed the instant motion for attorney fees on June 19, 2017. Counsel requests fees in the amount of $8, 471.00 pursuant to 42 U.S.C. § 406(b)(1). On July 24, 2017, Plaintiff was granted an extension of time to file an opposition to the motion for attorney fees. Plaintiff's opposition was due by August 25, 2017. Plaintiff has not filed an objection to the fee request.

         I.

         BACKGROUND

         Plaintiff filed the instant complaint challenging the denial of social security benefits on May 30, 2014. (ECF No. 1.) On September 23, 2015, the magistrate judge's order issued finding that the ALJ erred by not considering if Plaintiff met Listing 12.05C. (ECF No. 23.) The Court entered judgment in Plaintiff's favor and the action was remanded. (ECF No. 24.)

         On remand, the ALJ found that Plaintiff was disabled as of December 31, 2004, and past benefits were awarded in the amount of $58, 623.00. (ECF No. 33-2 at 2.) The Commissioner withheld $14, 655.75 from the past-due benefit for attorney fees. (Id.) This amount equals 25 percent of the retroactive benefit award. (Id.) Petitioner's prior request for an award of attorney fees under the Equal Access to Justice Act (“EAJA”) was denied. (ECF No. 32.)

         II.

         LEGAL STANDARD

         In relevant part, 42 U.S.C. § 406(b)(1)(A) provides that when a federal court “renders a judgment favorable to a claimant . . . who was represented before the court by an attorney, ” the court may allow reasonable attorney fees “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.” The payment of such award comes directly from the claimant's benefits. 42 U.S.C. § 406(b)(1)(A).

         The Supreme Court has explained that a district court reviews a petition for section 406(b) fees “as an independent check” to assure that the contingency fee agreements between the claimant and the attorney will “yield reasonable results in particular cases.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful attorney-client fee agreements, ” and is to look first at the contingent-fee agreement, and then test it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009). Agreements seeking fees in excess of twenty-five percent of the past-due benefits awarded are not enforceable. Crawford, 586 F.3d at 1148. The attorney has the burden of demonstrating that the fees requested are reasonable. Gisbrecht, 535 U.S. at 808; Crawford, 586 F.3d at 1148.

         In determining the reasonableness of an award, the district court should consider the character of the representation and the results achieved. Gisbrecht, 535 U.S. at 800. Ultimately, an award of section 406(b) fees is offset by an award of attorney fees granted under the EAJA. Gisbrecht, 535 U.S. at 796.

         The Ninth Circuit has identified several factors that a district court can examine under Gisbrecht in determining whether the fee was reasonable. In determining whether counsel met his burden to demonstrate that the requested fees are reasonable, the court may consider (1) the standard of performance of the attorney in representing the claimant; (2) whether the attorney exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of past-due benefits; and (3) whether the requested fees are excessively large in relation to the benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586 F.3d at 1151.

         III.

         DISCUSSION

         The Court has conducted an independent check to insure the reasonableness of the requested fees in relation to this action. Gisbrecht, 535 U.S. at 807. Here, the fee agreement between Plaintiff and Petitioner provides that counsel can “seek fees from their past due benefits totaling up to 25% of all past due benefits” if benefits are awarded “after the Court remands the case to the Social Security Administration for further proceedings.” (Fee Agreement & Contract, attached to Motion, ECF No. 33-1.) Plaintiff has been awarded benefits from October 2010 through October 2016 in ...


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