Opinion
CV-17-03817-PHX-JAT
11-23-2021
Linda Weirick, Plaintiff, v. Commissioner of Social Security Administration, Defendant.
ORDER
James A. Teilborg Senior United States District Judge
Pending before the Court is Plaintiff's Attorney's Motion for Attorney's Fees under 42 U.S.C. § 406(b) of the Social Security Act. (Doc. 39). The government filed a response offering an analysis to assist this Court. (Doc. 40). After this Court ordered supplemental briefing on August 30, 2021, (Doc. 41), Plaintiff's counsel filed another brief in support of the motion. (Doc. 44). The Court now rules.
I. BACKGROUND
Following denials at the administrative level, Plaintiff filed this action seeking judicial review of the Commissioner's final decision. (Doc. 39 at 2). The District Court affirmed the Commissioner's decision. (Id.). Upon appeal, the Ninth Circuit remanded for an award of benefits. (Id. at 3). Thereafter, the Commissioner issued a Notice of Award in the amount of $128,728.00 for past-due benefits and indicated that a total of $32,182.00 had been withheld for payment of attorney's fees.
Plaintiff's counsel seeks a total fee award of $50,682.00, equal to 25% of Plaintiff's back pay ($32,182.00), plus $18,500.00 in fees under the Equal Access to Justice Act (EAJA). (Id. at 3). For the following reasons, the Court will grant Plaintiffs motion requesting fees in the amount of $32,182.00.
II. APPLICABLE LAW AND ANALYSIS
Sections 406(a) and 406(b) of the Social Security Act provide for the award of attorney's fees out of the past-due benefits recovered by a successful claimant in a Social Security action. 42 U.S.C. § 406(a) allows counsel to seek a legal fee up to 25% of the back pay from the Commissioner of Social Security. Likewise, 42 U.S.C. § 406(b) permits the court to award a reasonable fee to plaintiffs counsel, not to exceed 25%. The 25% caps on attorney fees are at the agency level and the court level respectively; in other words, there is not a 25% cap on aggregate fees awarded under § 406(a) and § 406(b). See Culbertson v. Berryhill, 139 S.Ct. 517, 522-24 (2019).
To determine a reasonable fee to plaintiffs counsel, the Supreme Court held that §406(b) “does not displace contingent-fee agreements, ” but calls for courts to provide an “independent check, to assure that they yield reasonable results in particular cases.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). The Court also said that “[agreements are unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits.” Id. (citing 42 U.S.C. § 406(b)(1)(A)) (footnote omitted).
In determining whether fees sought under § 406(b) are reasonable, the court considers the contingent-fee agreement, the character of the attorney's representation, and the results achieved. Id. at 808. Courts may also consider the number of hours spent representing the claimant and the lawyer's normal hourly billing rate for non-contingent-fee cases, but this information does not control the reasonableness determination. Id. at 808-09. Finally, if a claimant's attorney receives fees under both the EAJA and § 406(b), the attorney must “refund to the claimant the amount of the smaller fee.” Id. at 796 (citation omitted).
Plaintiff contracted to pay 25% of past-due benefits on a contingent fee basis for work performed at the agency level and an additional 25% for the work performed at the Federal Court level. (Doc. 39-1 at 9-10). In its previous Order, (Doc. 41 at 2), the Court expressed concern “that the letter did not make clear that the total fees ultimately charged may exceed 25%.” (Id.). Given those concerns, the Court allowed the government or Plaintiff to file a response to counsel's supplement. (Id.). Neither of them did. Because Plaintiff did not file a response, the Court concludes that the Plaintiff does not object to the fee agreement or counsel's requested fee award.
Applying the Gisbrecht factors, the fee requested here is reasonable. Plaintiffs counsel seeks $32,182.00 or 25% of the past-due amount awarded to Plaintiff. Counsel's itemization of services indicates 100.1 hours of services rendered. (Doc. 44-1 at 5). Based on the hours expended, 406(b) fees would be computed at $321.82 per hour. This amount is in line with approved effective hourly rates by the Ninth Circuit. Young v. Colvin, 2014 WL 590335, at *1 (D. Ariz. Feb. 14, 2014).
On the instant record, there is no indication of any substandard performance by Plaintiffs counsel. Counsel successfully convinced the Ninth Circuit that Plaintiff was eligible for benefits. There is also no indication of substandard performance or undue delay in prosecuting Plaintiff's case. Crawford, 586 F.3d at 1151. Thus, upon consideration of the Gisbrecht reasonableness factors, in addition to the risk involved in the contingency fee arrangement in this case, the Court concludes that a fee award of $32,182.00 is reasonable.
III. CONCLUSION
Therefore, IT IS ORDERED that Plaintiffs Attorney's Motion for an Award of Attorney's Fees under 42 U.S.C. § 406(b) (Doc. 39) is GRANTED in the amount of $32,182.00.
IT IS FURTHER ORDERED that Plaintiffs counsel shall, after receipt of the above-awarded fee, refund to Plaintiff the fee previously awarded under the Equal Access to Justice Act, in the amount of $18,500.00.