(SS) Andrade v. Commissioner of Social Security, No. 1:2010cv02148 - Document 37 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS Granting Counsel's Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) 32 , 36 , signed by Magistrate Judge Jennifer L. Thurston on 4/30/2018.(Hellings, J)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LETICIA ANN ANDRADE, Plaintiff, 12 v. 13 14 COMISSIONER OF SOCIAL SECURITY, Defendant. 15 ) ) ) ) ) ) ) ) ) ) Case No.: 1:10-cv-2148-AWI- JLT FINDINGS AND RECOMMENDATIONS GRANTING COUNSEL’S MOTION FOR ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(b) (Doc. 32, 36) 16 17 Sengthiene Bosavanh, counsel for Leticia Ann Andrade, seeks an award of attorney fees 18 pursuant to 42 U.S.C. § 406(b) following an award of benefits to Plaintiff. (Docs. 32, 36) Neither 19 Plaintiff nor Defendant filed a response to the motion. For the following reasons, the Court 20 recommends counsel’s motion for attorney fees be GRANTED. 21 I. 22 Relevant Background Plaintiff entered into a contingent fee agreement with the attorneys employed at the Law Offices 23 of Jeffrey Milam, including Ms. Bosavanh, on November 15, 2010. (Doc. 32-1 at 1) In relevant part, 24 the agreement provided that if the federal court litigation resulted in past-due benefits paid to Plaintiff, 25 her attorney would receive “25 (twenty-five) percent of the past-due benefits resulting from [her] 26 claim or claims.” (Id., emphasis in original) 27 28 In November 2010, Plaintiff filed a complaint for review of the administrative decision denying her Social Security benefits. (Doc. 1) The Court determined the administrative law judge 1 1 erred in the evaluating the credibility of Plaintiff’s subjective complaints. (Doc. 24 at 3-4) Therefore, 2 the Court remanded the matter for further administrative proceedings pursuant to sentence four of 42 3 U.S.C. § 405(g), and judgment was entered in favor of Plaintiff. (Doc. 24 at 4; Doc. 25) 4 Following the remand, Plaintiff received a favorable decision. (See Doc. 32-3) The 5 Commissioner determined Plaintiff was “entitled to monthly disability benefits from Social Security 6 beginning in July 2006,” which totaled $102,960.00. (Id. at 1, 5) From this amount, the Commissioner 7 withheld twenty-five percent for payment of Plaintiff’s attorney fees. (Id. at 5) 8 II. An attorney may seek an award of fees for representation of a Social Security claimant who is 9 10 Attorney Fees under § 406(b) awarded benefits: Whenever a court renders a judgment favorable to a claimant under [42 USC § 401, et seq] who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, 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. . . . 11 12 13 14 15 42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) 16 controls fees awarded for representation of Social Security claimants). A contingency fee agreement 17 is unenforceable if it provides for fees exceeding twenty-five percent of past-due benefits. Id. at 807. 18 III. 19 Discussion and Analysis District courts “have been deferential to the terms of contingency fee contracts § 406(b) cases.” 20 Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). However, the Court must review 21 contingent-fee arrangements “as an independent check, to assure that they yield reasonable results in 22 particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, the Court should consider “the character of 23 the representation and the results the representative achieved.” Id. at 808. In addition, the Court 24 should consider whether the attorney performed in a substandard manner or engaged in dilatory 25 conduct or excessive delays, and whether the fees are “excessively large in relation to the benefits 26 received.” Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc). 27 28 In this case, Plaintiff entered into the contingent fee agreement in which she agreed to pay twenty-five percent of any awarded retroactive benefits. Ms. Bosavanh accepted the risk of loss in the 2 1 representation while representing Plaintiff before the District Court, and expended 55.5 hours on tasks 2 related to the action before the District Court. As a result of counsel’s work before the Court and the 3 agency, the matter was remanded for further proceedings before an administrative law judge, who 4 issued a fully favorable decision and awarded Plaintiff benefits. For this, Ms. Bosavanh “requests a 5 fee of $25,740.00 under the contingency fee contract.” (Doc. 36 at 3) Significantly, there is no indication Ms. Bosavanh performed in a substandard manner or 6 7 engaged in severe dilatory conduct to the extent that a reduction in fees is warranted. To the contrary, 8 Ms. Bosavanh actively advocated on behalf of her client and was able to secure a remand for further 9 proceedings, after which Plaintiff was awarded benefits. In addition, there is no evidence that counsel 10 engaged in abusive dilatory conduct that would increase the fees significantly, as she requested only a 11 single extension of time, which was permitted under the terms of the Court’s Scheduling Order. (See 12 Doc. 7 at 4; Doc. 15) The fees are not “excessively large in relation to the benefits received,” but 13 rather equal the amount permitted by statute. See Crawford, 586 F.3d at 1149; 42 U.S.C. § 14 406(b)(1)(A). Finally, although served with the motion and informed of the right to oppose the fee 15 request (see Doc. 36 at 2), Plaintiff did not file an opposition and thereby indicates her belief that the 16 fee request is reasonable. 17 IV. 18 Findings and Recommendations The Court finds the fees sought by Ms. Bosavanh are reasonable in light of the time expended 19 and results achieved. Moreover, the amount requested does not exceed the twenty-five percent 20 maximum permitted under 42 U.S.C. §406(b). Based upon the foregoing, the Court RECOMMENDS: 21 1. amount of $25,740.00; and 22 23 The motion for attorney fees pursuant to 24 U.S.C. §406(b) be GRANTED in the 2. The Commissioner shall pay the amount directly to Counsel, Sengthiene Bosavanh with Milam Law, Inc. 24 25 26 27 28 IT IS SO ORDERED. Dated: April 30, 2018 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 3

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