United States District Court, E.D. California
NANCY T. LEVINE, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
brought this action seeking judicial review of a final
administrative decision denying an application for Disability
Insurance Benefits under Title II of the Social Security Act.
By order filed September 6, 2018, plaintiff's motion for
summary judgment was granted, the decision of the
Commissioner was reversed, and the case was remanded for
further proceedings.(ECF No. 26.)
August 9, 2019, counsel for plaintiff filed a motion for an
award of attorney's fees pursuant to 42 U.S.C. §
406(b). (ECF No. 32.) Specifically, plaintiff and
plaintiff's counsel entered into a contingent-fee
agreement. (ECF No. 32-4.) Pursuant to that agreement
plaintiff's counsel now seeks attorney's fees in the
amount of $26, 849.25, which represents 25% of the
retroactive disability benefits received by plaintiff on
remand, for approximately 28.9 hours of combined attorney and
law clerk time expended on this matter. (ECF No. 32 at 1; ECF
No. 32-1 at 2-3.) Defendant filed “an analysis of the
fee request” but “takes no position on the
reasonableness of the request.” (ECF No. 26 at 5.)
are entitled to fees for cases in which they have
successfully represented social security claimants.
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). “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)).
Although an attorney fee award pursuant to 42 U.S.C. §
406(b) is not paid by the government, the Commissioner has
standing to challenge the award. 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 § 406(b) is to provide adequate incentive to
attorneys for representing claimants while ensuring that the
usually meager disability benefits received are not greatly
depleted. Cotter v. Bowen, 879 F.2d 359, 365 (8th
statutory maximum fee is not an automatic entitlement, and
the court must ensure that the fee actually requested is
reasonable. Gisbrecht, 535 U.S. at 808-09
(“[Section] 406(b) does not displace contingent-fee
agreements within the statutory ceiling; instead, §
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. “[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 1149 (quoting Gisbrecht, 535 U.S. at 793
Supreme Court has identified five factors that may be
considered in determining whether a fee award under a
contingent-fee arrangement 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
the amount of time counsel spent on the case; and (5) the
attorney's record of hours worked and counsel's
regular hourly billing charge for noncontingent cases.
Crawford, 586 F.3d at 1151-52 (citing
Gisbrecht, 535 U.S. at 808). Below, the court will
consider these factors in assessing whether the fee requested
by counsel in this case pursuant to 42 U.S.C. § 406(b)
there is no indication that a reduction of fees is warranted
due to any substandard performance by counsel. Rather,
plaintiff's counsel is an experienced attorney who
secured a successful result for plaintiff. There is also no
evidence that plaintiff's counsel engaged in any dilatory
conduct resulting in excessive delay. The court finds that
the $26, 849.25 fee, which represents 25% of the past-due
benefits paid to plaintiff, is not excessive in relation to
the benefits awarded. In making this determination, the court
recognizes the contingent fee nature of this case and
counsel's assumption of the risk of going uncompensated
in agreeing to represent plaintiff on such terms. See
Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal.
2003). Finally, counsel has submitted a detailed billing
statement in support of the requested fee. (ECF No. 32-5.)
for the reasons stated above, the court concludes that the
fees sought by counsel pursuant to § 406(b) are
reasonable. See generally Azevedo v. Commissioner of
Social Security, No. 1:11-cv-1341 AWI SAB, 2013 WL
6086666, at *2 (E.D. Cal. Nov. 19, 2013) (granting petition
pursuant to 406(b) for $17, 893.75 in attorney's fees);
Coulter v. Commissioner of Social Security, No.
1:10-cv-1937 AWI JLT, 2013 WL 5969674, at *2 (E.D. Cal. Nov.
8, 2013) (recommending award of $15, 084.23 in attorney's
fees pursuant to 406(b)); Taylor v. Astrue, No.
1:06-cv-00957-SMS, 2011 WL 836740, at *2 (E.D. Cal. Mar. 4,
2011) (granting petition pursuant to 406(b) for $20, 960 in
attorneys' fees); Jamieson v. Astrue, No.
1:09cv0490 LJO DLB, 2011 WL 587096, at *2 (E.D. Cal. Feb. 9,
2011) (recommending award of $34, 500 in attorney fees
pursuant to 406(b)).
award of § 406(b) fees is, however, normally offset by
any prior award of attorney's fees granted under the
Equal Access to Justice Act (“EAJA”). 28 U.S.C.
§ 2412; Gisbrecht 535 U.S. at 796. Here,
plaintiffs counsel was previously awarded $7, 500 in EAJA
fees. (ECF No. 31.) However, that award was claimed by the
U.S. Department of Treasury Offset Program to offset a
pre-existing debt that plaintiff owed. (ECF No. 32 at 6.)
Thus, “no refund of EAJA fees is required[.]”
Kincaid v. Berryhill, Case No. CV 15-0582 RAO, 2018
WL 6262857, at *2 (CD. Cal. Feb. 12, 2018).
IT IS HEREBY ORDERED that:
1. Plaintiffs August 9, 2019 motion for attorney fees under
42 U.S.C. § 406(b), (ECF No. 32), is granted; and
2. Counsel for plaintiff is awarded $26, 849.25 in attorney
fees under § 406(b). The Commissioner is directed to pay
the fee forthwith and remit to plaintiff ...