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Lowman v. Berryhill

United States District Court, D. Nevada

March 21, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.


          William G. Cobb United States Magistrate Judge

         This 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.

         Before the court is a motion for attorney fees under 42 U.S.C. § 406(b) filed by Plaintiff's counsel. (ECF Nos. 29, 29-1 to 29-8.) Plaintiff did not file a response to the motion. The Commissioner of Social Security filed a response indicating the Commissioner has no objection to the fee request. (ECF No. 30.)

         After a thorough review, the court finds the fees requested to be reasonable and recommends that the motion be granted.

         I. BACKGROUND

         Plaintiff Linda Ann Lowman, 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, 2, 3.) Plaintiff filed a motion for reversal and/or remand, and the Commissioner filed a cross-motion to affirm and response. (ECF Nos. 15, 20, 21.) 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. 23.) Senior District Judge Howard D. McKibben adopted and accepted the report and recommendation and remanded the case to the Administrative Law Judge (ALJ) for further proceedings. (ECF No. 24.) The parties stipulated, and the court ordered an award of attorney's fees and expenses under the Equal Access to Justice Act (EAJA) in the amount of $6, 442.35. (ECF Nos. 25, 26) On remand, the Commissioner granted Plaintiff's application for benefits, entitling her to receive $61, 060 in retroactive benefits.

         Counsel's representation of Plaintiff was based on a contingency fee agreement. Plaintiff's counsel filed this motion requesting an award of attorney's fees in the amount of $14, 000 under 42 U.S.C. § 406(b), with an offset of the $6, 442.35 awarded under the EAJA. (ECF No. 29.)


         The 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. §406(b)(1).

         "[A]n 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.

         In 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).

         Crawford 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 loss.").

         Finally, 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. ...

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