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Isaac v. Saul

United States District Court, E.D. California

September 20, 2019

TONI LYNN ISAAC, Plaintiff,
v.
ANDREW SAUL, Commissioner of Social Security[1], Defendant.

          ORDER GRANTING PLAINTIFF’S COUNSEL’S UNOPPOSED MOTION FOR ATTORNEY’S FEES PURSUANT TO 42 U.S.C. § 406(B) (DOC. 21)

          Sheila K. Oberto, UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         On August 8, 2019, counsel for Plaintiff Toni Lynn Isaac (“Plaintiff) filed a motion for an award of attorney’s fees pursuant to 42 U.S.C. § 406(b). (Doc. 21.) On the same date, the Court issued a minute order requiring Plaintiff and the Commissioner to file their responses in opposition or statements of non-opposition to Plaintiffs counsel’s motion, if any, by no later than September 5, 2019. (Doc. 22.) Plaintiff and the Commissioner were served with copies of the motion for attorney’s fees and the minute order. (Doc. 27.)

         On August 20, 2019, the Commissioner filed a response, acknowledging that he was not a party to the contingent-fee agreement between Plaintiff and her counsel and is therefore “not in a position to either assent or object to the § 406(b) fees that Counsel seeks from Plaintiffs past-due benefits, ” but is nevertheless taking “no position on the reasonableness of the request.” (See Doc. 28 at 2, 4.) Plaintiff did not file any objection to the motion by the September 5, 2019 deadline (See Docket).

         For the reasons set forth below, Plaintiffs counsel’s motion for an award of attorney’s fees is granted in the amount of $15, 505.25, subject to an offset of $4, 500.00 in fees already awarded pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), on May 3, 2017 (see Doc. 20).

         II. BACKGROUND

         Plaintiff brought the underlying action seeking judicial review of a final administrative decision denying her claim for disability benefits under the Social Security Act. (Doc. 1.) The parties stipulated to voluntarily remand the case pursuant to Sentence Four of 42 U.S.C. 405(g) on March 29, 2017, and judgment was entered in favor of Plaintiff and against the Commissioner on March 30, 2017. (Docs. 16, 17, 18.) On April 27, 2017, the parties stipulated to an award of $4, 500.00 in attorney fees under EAJA, which was granted on May 3, 2017. (Docs. 19, 20.)

         On remand, the Commissioner found Plaintiff disabled as of August 15, 2010. (See Doc. 21-2 at 2.) On July 27, 2019, the Commissioner issued a letter to Plaintiff approving her claim for benefits and awarding her $122, 021.00 in back payments through June 2019. (Doc. 21-1; Doc. 21-2 at 2.) On August 8, 2019, counsel filed a motion for attorney’s fees in the amount of $15, 505.25, [2]equal to 12.7% of Plaintiffs back benefits, with an offset of $4, 500.00 for EAJA fees already awarded. (Doc. 21.) It is counsel’s § 406(b) motion for attorney’s fees that is currently pending before the Court.

         III. DISCUSSION

         Pursuant to the Social Security Act, attorneys may seek a reasonable fee for cases in which they have successfully represented social security claimants. Section 406(b) provides the following:

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) (emphasis added). “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 Commissioner has standing to challenge the award, despite that the section 406(b) attorney’s fee award is not paid by the government. Craig v. Sec’y Dep’t of Health & Human Servs., 864 F.2d 324, 328 (4th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807. The goal of fee awards under section 406(b) is to provide adequate incentive to represent claimants while ensuring that the usually meager disability benefits received are not greatly depleted. Cotter v. Bowen, 879 F.2d 359, 365 (8th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807.1

         The 25% maximum fee is not an automatic entitlement, and courts are required to ensure that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808-09 (Section 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, section 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; see also Crawford, 586 F.3d at 1148 (holding that section 406(b) “does not specify how courts should determine whether a requested fee is reasonable” but “provides only that the fee must not exceed 25% of the past-due benefits awarded”).

         Generally, “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 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). The United States Supreme Court has identified several factors that may be considered in determining whether a fee award under a contingent-fee agreement is unreasonable and therefore subject to reduction by the court: (1) the character of the representation; (2) the results achieved by the representative; (3) whether the attorney engaged in dilatory conduct in order to increase the accrued amount of past-due benefits; (4) whether the benefits are large in comparison to ...


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