Opinion
No. 2:13-cv-2127 CKD
12-10-2015
JOHN ROSS, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
ORDER
Based on 42 U.S.C. § 406(b), counsel for plaintiff in the above-entitled action seeks an award of attorney fees in the amount of $5,955.00 for 23.8 hours of professional time devoted to the representation of plaintiff before this court. Counsel contends that this amount should not be offset in the amount of $4,000.00 for fees previously awarded under EAJA because the Department of the Treasury applied the entire amount of the EAJA award to pay down plaintiff's federal debt.
42 U.S.C. § 406(b)(1)(A) provides, in relevant part:
Whenever a court renders a judgment favorable to a claimant under this subchapter 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.Rather than being paid by the government, fees under the Social Security Act are awarded out of the claimant's disability benefits. Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991), receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 2001). However, the 25 percent statutory maximum fee is not an automatic entitlement; the court also must ensure that the requested fee is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 (2002) ("We hold that § 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those agreements."). "Within the 25 percent boundary ... the attorney for the successful claimant must show that the fee sought is reasonable for the services rendered." Id. at 807.
Counsel seeks fees for 23.8 hours. Based on the quality of counsel's representation and the results achieved in this case, the undersigned finds the amount of hours expended to be reasonable. The hourly rate of $250.22 is also reasonable. Accordingly, the undersigned will award the amount of attorney fees requested. Because plaintiff's counsel has received no part of the fees previously awarded under EAJA, no offset will be made.
Accordingly, IT IS HEREBY ORDERED that plaintiff's counsel is awarded $5,955.00 in attorney fees pursuant to 28 U.S.C. § 406(b). No offset shall be made for the fees previously awarded under EAJA. Dated: December 10, 2015
/s/_________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE 4 ross.ss.406.fee