United States District Court, E.D. California
ORDER GRANTING PETITIONER'S MOTION FOR ATTORNEY
FEES PURSUANT TO 42 U.S.C. § 406(B) (ECF NO.
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.
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.
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
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. §
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.
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.
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.
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 ...