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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 MIKA MILLER, Case No. 1:13-cv-01597-SAB

12 Plaintiff, ORDER GRANTING PETITIONER’S

MOTION FOR ATTORNEY FEES

13 v. PURSUANT TO 42 U.S.C. § 406(b)

14 COMMISSIONER OF SOCIAL SECURITY, (ECF Nos. 22-24, 27) 15 Defendant.

16 17 Petitioner Young Yim (“Counsel”), attorney for Mika Miller (“Plaintiff”), filed the 18 instant motion for attorney fees on May 26, 2020. Counsel requests fees in the amount of 19 $13,230.75 pursuant to 42 U.S.C. § 406(b)(1). Plaintiff has not objected to the request. On June 20 23, 2020, Defendant Social Security Commissioner, as a de facto trustee for Plaintiff, filed a 21 response to Petitioner’s motion providing an analysis of the fee request. 22 I. 23 BACKGROUND 24 Plaintiff filed the complaint challenging the denial of social security benefits on October 25 3, 2013. (ECF No. 1.) On December 24, 2014, the magistrate judge’s order issued finding that 26 the ALJ erred by relying on an inconsistent opinion of Dr. Walker regarding Plaintiff’s use of his 27 left hand.1 (ECF No. 16.) The Court entered judgment in Plaintiff’s favor and the action was 1 remanded on December 24, 2014. (ECF Nos. 16, 17.) On February 24, 2015, at the stipulation 2 of the parties, Plaintiff was awarded attorney fees of $5,100.00 under the Equal Access to Justice 3 Act (“EAJA”). (ECF No. 19.) 4 On remand, the ALJ found that Plaintiff was disabled as of March 30, 2010, and past 5 benefits were awarded in the amount of $52,923.00.2 (April 25, 2020 Award Letter, ECF No. 6 24-1 at 6-11.) The Commissioner withheld $13,230.75 from the past-due benefit for attorney 7 fees. This amount equals 25 percent of the retroactive benefit award. (Id. at 8.3) 8 Petitioner filed the instant motion on May 26, 2020, and Plaintiff was served with the 9 motion on June 1, 2020. (ECF Nos. 22-24, 26.) The Commissioner filed a response on June 23, 10 2020. (ECF No. 27.) Plaintiff has not objected or otherwise responded to the motion. 11 II. 12 LEGAL STANDARD 13 In relevant part, 42 U.S.C. § 406(b)(1)(A) provides that when a federal court “renders a 14 judgment favorable to a claimant . . . who was represented before the court by an attorney,” the 15 court may allow reasonable attorney fees “not in excess of 25 percent of the total of the past-due 16 benefits to which the claimant is entitled by reason of such judgment.” The payment of such 17 award comes directly from the claimant’s benefits. 42 U.S.C. § 406(b)(1)(A). 18 The Supreme Court has explained that a district court reviews a petition for section 19 406(b) fees “as an independent check” to assure that the contingency fee agreements between the 20 claimant and the attorney will “yield reasonable results in particular cases.” Gisbrecht v. 21 Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful 22 attorney-client fee agreements,” and is to look first at the contingent-fee agreement, and then test 23 it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009). The twenty- 24 five percent maximum fee is not an automatic entitlement, and courts are required to ensure that 25

2 The award letter does not state the cumulative amount of back benefits awarded, but does state that twenty five 26 percent, or $13,230.75, was withheld from the past due benefits. (ECF No. 24-1 at 8.) This would make the total award $52,923.00 (4 x $13,230.75). 27 3 All references to pagination of specific documents pertain to those as indicated on the upper right corners via the 1 the requested fee is reasonable. Gisbrecht, 535 U.S. at 808–09 (“§ 406(b) does not displace 2 contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts to 3 review for reasonableness fees yielded by those agreements”). Agreements seeking fees in 4 excess of twenty-five percent of the past-due benefits awarded are not enforceable. Crawford, 5 586 F.3d at 1148. The attorney has the burden of demonstrating that the fees requested are 6 reasonable. Gisbrecht, 535 U.S. at 808; Crawford, 586 F.3d at 1148. 7 In determining the reasonableness of an award, the district court should consider the 8 character of the representation and the results achieved. Gisbrecht, 535 U.S. at 800. Ultimately, 9 an award of section 406(b) fees is offset by an award of attorney fees granted under the EAJA. 10 Gisbrecht, 535 U.S. at 796. 11 The Ninth Circuit has identified several factors that a district court can examine under 12 Gisbrecht in determining whether the fee was reasonable. In determining whether counsel met 13 his burden to demonstrate that the requested fees are reasonable, the court may consider (1) the 14 standard of performance of the attorney in representing the claimant; (2) whether the attorney 15 exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of 16 past-due benefits; and (3) whether the requested fees are excessively large in relation to the 17 benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586 18 F.3d at 1151. 19 III. 20 DISCUSSION 21 The Court has conducted an independent check to insure the reasonableness of the 22 requested fees in relation to this action. Gisbrecht, 535 U.S. at 807. Here, the fee agreement 23 between Plaintiff and Petitioner provides for a fee not to “exceed 25% of the back due benefits 24 due” to Plaintiff after the action is remanded back to the Social Security Administration for 25 further proceedings. (Retainer Agreement and Assignment, ECF No. 24-1 at 2.) Plaintiff has 26 been awarded benefits from March 2010 through March 2020 in the amount of $52,923.00. 27 (ECF No. 24-1 at 6-11.) In determining the reasonableness of the fees requested, the Court is to 1 There is no indication that a reduction of fees is warranted for substandard performance. 2 Counsel is an experienced, competent attorney who secured a successful result for Plaintiff. (See 3 Decl. of Young Yim in Support of Pl.’s Mot. for Approval of Attorney Fees Under § 406(b) of 4 the Social Security Act, ¶ 2, ECF No. 24.) Although this action does involve ten years of 5 backpay, there is no indication that Counsel was responsible for any substantial delay in the court 6 proceedings. Plaintiff agreed to a 25 percent fee at the outset of the representation and Petitioner 7 is seeking payment of $13,230.75 which is 25% of the back pay award. The $13,230.75 fee is 8 not excessively large in relation to the past-due award of $52,923.00. In making this 9 determination, the Court recognizes the contingent nature of this case and Counsel’s assumption 10 of the risk of going uncompensated. Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 11 2003). 12 In support of the motion, Petitioner submits a log of the time spent in prosecuting this 13 action. (Contemporaneous Hour Log, ECF No. 24-1 at 4.) The log demonstrates that Petitioner 14 spent 28.9 hours on this action. (Id.) When considering the total amount requested by Petitioner, 15 the fee request translates to $457.81 per hour for Petitioner’s services in this action. In Crawford 16 the appellate court found that a fee of $875 and $902 per hour, for time of both attorneys and 17 paralegals, was not excessive. Crawford, 486 F.3d at 1152 (dissenting opinion). 18 Further, since Gisbrecht, courts note that reducing a fee request is dicey business and find 19 fee awards much higher than this to be reasonable. Williams v. Berryhill, No. EDCV 15-919- 20 KK, 2018 WL 6333695, at *2 (C.D. Cal. Nov. 13, 2018) (awarding fee request that provides an 21 hourly rate of $1,553.36 per hour); Coles v. Berryhill, No. EDCV 14-1488-KK, 2018 WL 22 3104502, at *3 (C.D. Cal. June 21, 2018) (effective hourly rate of $1,431.94 reasonable under 23 the circumstances); Palos v. Colvin, No. CV 15-04261-DTB, 2016 WL 5110243, at *2 (C.D. 24 Cal. Sept. 20, 2016) (fees sought translate to $1,546.39 per hour for attorney and paralegal 25 services); see also Villa v. Astrue, No. CIVS-06-0846 GGH, 2010 WL 118454, at *1, n.1 (E.D. 26 Cal. Jan. 7, 2010) (“In practice, the more efficient counsel is in court, the higher will be the 27 hourly fee amount represented in a § 406 fee award.”) wOAOe 4:40 UV VEY POSEN MMVI CO PO eee AY VI

1 | work Petitioner performed in representing Plaintiff in court. Petitioner’s representation of the 2 | claimant resulted in the action being remanded for further proceedings and ultimately benefits 3 | were awarded. Petitioner also submitted a detailed billing statement which supports the request. 4 | The Court finds that Petitioner’s request for an award of attorney fees under Section 406(b) is 5 | reasonable. 6 The award of Section 406(b) fees is offset by any prior award of attorney fees granted 7 | under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. In this instance, Petitioner has 8 | previously been awarded $5,100.00 in EAJA fees and the award of fees under Section 406(b) 9 | must be offset in that amount. 10 VI. 11 CONCLUSION AND ORDER 12 For the reasons stated above, the Court finds that the fees sought by Petitioner pursuant to 13 | Section 406(b) are reasonable. Accordingly, IT IS HEREBY ORDERED that: 14 1. Petitioner’s motion for an award of attorney fees pursuant to Section 406(b) in the 15 amount of $13,230.75 is GRANTED; 16 2. Pursuant to counsel’s request, this amount shall be paid directly to the Law 17 Offices of Charles E. Binder and Harry J. Binder, LLP; and 18 3. Petitioner SHALL refund $5,100.00 of the Section 406(b) fees awarded to 19 Plaintiff as an offset for EAJA fees previously awarded pursuant to 28 U.S.C. § 20 2412(d). 21 IT IS SO ORDERED. F- 2 ee 23 | Dated: _ July 20, 2020_ Of

UNITED STATES MAGISTRATE JUDGE

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