Coronado v. Commissioner of Social Security Administration

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA Delia C oronado, ) No. CV-16-03458-PHX-SPL ) ) 10 Plaintiff, ) ORDER vs. ) ) ) Commissioner of Social Security ) Administration, ) 13 ) ) 14 Defendant. ) 15 Pending before the Court is Plaintiff’s Motion for an Award of Attorneys’ Fees Under 42 U.S.C. § 406(b) (Doc. 32).

17 On August 24, 2017, this Court granted the parties’ Stipulated Motion for Remand (Docs. 27, 28). On remand, Plaintiff was awarded $76,504 in back benefits due, and a Notice of Award was issued on April 21, 2019 (Doc. 32–1). Plaintiff now seeks an award of $19,126 in attorneys’ fees under 42 U.S.C. § 406(b) (Doc. 32).

21 The Social Security Act provides that the Court may award reasonable attorneys’ fees for representation before the Court, not to exceed twenty-five percent of past-due benefits. 42 U.S.C. § 406(b)(1)(A). The Supreme Court in Gisbrecht v. Barnhart provides district courts with guidance on how to evaluate such Section 406(b) contingent-fee requests for reasonableness.

26 Most plausibly read, . . . § 406(b) does not displace contingent- fee agreements as the primary means by which fees are set for 27 successfully representing Social Security benefits claimants in court. Rather, § 406(b) calls for court review of such 28 arrangements as an independent check, to assure that they yield reasonable results in particular cases.

2 Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). In determining whether such a fee award is reasonable under 42 U.S.C. § 406(b), the Court may look to factors including the character of the representation, the results achieved, delay, and proportionality. Gisbrecht, 535 U.S. at 808; Crawford v. Astrue, 586 F.3d 1142, 1148, 1151 (9th Cir. 2009).

6 Defendant does not object to the merits of the request (Doc. 29).1 Upon review, the Court finds the request for $19,126 is twenty-five percent of Plaintiff’s past-due benefits and does not exceed the statutory cap. In addition, the instant record provides no indication of substandard performance, dilatory litigation tactics, or disproportionality.2 Accordingly, this Court concludes that a consideration of the Gisbrecht factors warrants a finding that the fee requested is reasonable.

12 IT IS THEREFORE ORDERED that the Motion for an Award of Attorneys’ Fees Under 42 U.S.C. § 406(b) (Doc. 32) is granted.

14 /// /// /// /// /// /// 21 1 Defendant has no objection to the award of fees under 42 U.S.C. § 406(b).

Defendant only requests clarification on the calculation of counsel’s hourly rate (Doc. 29).

22 Counsel claims that the effective hourly rate is $569.93, taking into account the EAJA offset (Doc. 32 at 11). “However, the effective hourly rate can be calculated only prior to the subtraction of the duplicate prior EAJA award; subtracting the EAJA award from the total fee sought is incorrect, as the EAJA fee is a wash.” Ringel v. Comm’r of Soc. Sec., 295 F.Supp.3d 816, 839–40 (S.D. Ohio 2018). Accordingly, the Court finds counsel’s effective hourly rate is not $569.93, but $768.11.

2 The fee request results in an effective hourly rate of $768.11 (Doc 32 at 12). “In cases of this type, the Ninth Circuit sitting en banc has approved effective hourly rates of $519, $875, and $902 without finding that they are unreasonable.” Young v. Colvin, 2014 27 WL 590335 at *2 (D. Ariz. 2014) (citing Crawford, 586 F.3d at 1153). Taking into account the risk inherent in contingent-fee arrangements, the Court concludes the hourly rate is reasonable.

1 IT IS FURTHER ORDERED that Counsel is awarded $19,126 in accordance with 2) 42U.S.C. § 406(b). Upon receipt of this sum, Counsel shall refund the previously awarded 3) EAJA fees of $4,934.67 to Plaintiff.

4 Dated this 22nd day of October, 2019.

7 LRG