McClellan v. Commissioner of Social Security Administration

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA Donna McClellan, ) No. CV-18-08026-PCT-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. 24).

17 On October 2, 2018, this Court granted the parties’ Stipulated Motion for Remand (Docs. 19, 20). On remand, Plaintiff was awarded $67,811.501 in back benefits due, and a Notice of Award was issued on August 20, 2019 (Doc. 24–1). Plaintiff now seeks an award of $16,952.88 in attorneys’ fees under 42 U.S.C. § 406(b) (Doc. 24).

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.

27 1 The Social Security Administration send Plaintiff an initial payment of $50,858.62 and withheld $16,952.88 in potential attorneys’ fees for a total of $67,811.50 in back benefits due.

Most plausibly read, . . . § 406(b) does not displace contingent- 1 fee agreements as the primary means by which fees are set for successfully representing Social Security benefits claimants in 2 court. Rather, § 406(b) calls for court review of such arrangements as an independent check, to assure that they yield 3 reasonable results in particular cases.

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).

Defendant does not object to the motion (Doc. 25). Upon review, the Court finds the request for $16,952.88 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.

IT IS THEREFORE ORDERED that the Motion for an Award of Attorneys’ Fees Under 42 U.S.C. § 406(b) (Doc. 24) is granted. /// /// /// /// /// The fee request results in an effective hourly rate of $1,215.26 (Doc 24 at 11). “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, No. CV–11–538–PHX–SMM, 2014 WL 590335, at *2 (D. Ariz. 2014) (citing Crawford, 586 F.3d at 1153); see also Claypool v. Barnhart, 294 F.Supp.2d 829, 833–34 (S.D. W. Va. 2003) (finding Defendant’s argument that an effective hourly rate of $1,433.12 for 12.56 hours of work represents a windfall to the attorney to be without merit); Palos v. Colvin, No. CV 15–04261–DTB, 2016 WL 5110243, at *2 (C.D. Cal. Sept. 20, 2016) (approving a hourly rate of $1,546.39); Villa v. Astrue, No. CIV–S–06–0846 GGH, 2010 WL 118454, at *1 (E.D. Cal. Jan. 7, 2010) (approving a rate in excess of $1,000 per hour and noting that “[r]educing § 406(b) fees after Crawford is dicey business.”). 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 $16,952.88 in accordance 2) with 42 U.S.C. § 406(b). Upon receipt of this sum, Counsel shall refund the previously 3) awarded EAJA fees of $2,800.88 to Plaintiff.

4 Dated this 22nd day of October, 2019.

7 LRG