United States District Court, D. Nevada
CYNTHIA C. ROLLERI, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
REPORT & RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE RE: ECF NO. 26
William G. Cobb United States Magistrate Judge
Report and Recommendation is made to the Honorable Howard D.
McKibben, United States District Judge. The action was
referred to the undersigned Magistrate Judge pursuant to 28
U.S.C. § 636(b)(1)(B) and the Local Rules of Practice,
LR 1B 1-4.
the court is a motion for attorney fees under 42 U.S.C.
§ 406(b) filed by Plaintiff's counsel. (ECF Nos. 26,
26-1 to 26-7.) Plaintiff did not file a response to the
motion. The Commissioner of Social Security filed a response
to the motion. (ECF No. 27.)
thorough review, the court finds the fees requested to be
reasonable and recommends that the motion be granted.
represented by counsel, sought and was granted in forma
pauperis status and filed her complaint requesting review of
the final decision of the Commissioner. (ECF Nos. 1, 3.)
Plaintiff filed a motion for reversal and/or remand, and the
Commissioner filed a response and cross-motion to affirm.
(ECF Nos. 11, 14, 15.) The undersigned issued a report and
recommendation that Plaintiff's motion be granted; the
Commissioner's cross-motion be denied; and, that the
matter be remanded for further proceedings. (ECF No. 17.)
District Judge McKibben adopted and accepted the report and
recommendation and remanded the case to the Administrative
Law Judge (ALJ) for further proceedings and entered judgment
in Plaintiff's favor. (ECF Nos.18, 19.) The parties
stipulated, and the undersigned ordered an award of
attorney's fees and expenses under the Equal Access to
Justice Act (EAJA) in the amount of $ 2, 500. (ECF Nos. 20,
21.) On remand, the Commissioner gave Plaintiff a fully
favorable decision, finding her disabled from the amended
onset date of April 1, 2010, through the date of the decision
on remand-July 16, 2018. (ECF No. 26-3.) The ALJ's
decision on remand does not state the amount of past due
benefits. Plaintiff's counsel represents in the motion
that the past due benefits are $92, 739.00.
representation was based on a contingency fee agreement.
Plaintiff's counsel filed this motion requesting an award
of attorney's fees in the amount of $17, 000 under 42
U.S.C. § 406(b), with an offset of the $2, 500 awarded
under the EAJA. (ECF No. 26-1.) Counsel seeks $17, 000 from
the past due benefits awarded (or roughly 18.33 percent of
the past due benefits), instead of the 25 percent withheld by
court may award fees when it "renders a judgment
favorable to a claimant ... who was represented before the
court by an attorney ... 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[.]"42 U.S.C.
award under §406(b) compensates an attorney for all the
attorney's work before a federal court on behalf of the
Social Security claimant in connection with the action that
resulted in past-due benefits." Parrish v.
Comm'r of Soc. Sec. Admin., 698 F.3d 1215, 1220 (9th
Cir. 2012). "The fee is payable 'out of, and not in
addition to, the amount of [the] past-due benefits'
awarded to the claimant." Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002) (citing
§406(b)(1)). "§406(b) does not displace
contingent-fee agreements as the primary means by which fees
are set for successfully representing Social Security
benefits claimants in court. Rather, §406(b) calls for
court review of such arrangements as an independent check, to
assure that they yield reasonable results in particular
cases." Id. at 807.
conducting the fee analysis, the court should begin with the
contingent fee agreement and determine if it is within the 25
percent cap, and then test if for reasonableness.
Gisbrecht, 535 U.S. at 808. In other words,
"the district court must first look to the fee agreement
and then adjust downward if the attorney provided substandard
representation or delayed the case, or if the requested fee
would result in a windfall." Crawford, 586 F.3d
1142, 1151 (9th Cir. 2009) (citing Gisbrecht, 535
U.S. at 808).
has set forth factors that district courts should consider in
determining the reasonableness of the fee, including: (1) the
character of the representation (whether there was
substandard performance or delay attributable to the attorney
requesting the fees); (2) the results achieved; (3) whether
the benefits of the representation were out of proportion
with the time spent on the case; and, (4) the risk assumed by
counsel in accepting the case. Crawford, 586 F.3d at
151-52. "'[A]s an aid to the court's assessment
of the reasonableness of the fee yielded by the fee
agreement,' but 'not as a basis for satellite
litigation,' the court may require counsel to provide a
record of the hours worked and counsel's regularly hourly
billing charge for noncontingent cases." Id. at
1148 (quoting Gisbrecht, 535 U.S. at 808). The
attorney bears the burden of establishing that the fee sought
is reasonable. Id. at 1145, 1148 (citing
Gisbrecht, 535 U.S. at 807) (approving requests for
fees with an effective hourly rate of $659, $813 and $875);
Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D.
Cal. 2003) (noting that "[s]ince Gisbrecht ...
district courts generally have been deferential to the terms
of contingency fee contracts in § 406(b) cases,
accepting that the resulting de facto hourly rates
may exceeds those for non-contingency-fee arrangements"
because "courts recognize that basing a reasonableness
determination on a simple hourly rate is inappropriate when
an attorney is working pursuant to a reasonable contingency
contract for which there runs a substantial risk of
when fees are awarded under the EAJA, and fees are also
awarded under section 406(b)(1) in the same case, the court
must offset the EAJA award against the section 406(b) award.
Gisbrecht, 535 U.S. at 796; Parrish, 698
F.3d at 1221.