(SS) Giordano v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY J. GIORDANO, Case No. 2:20-cv-02082-JDP (SS) 12 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY FEES UNDER 42 U.S.C. 13 v. § 406(b) 14 KILOLO KIJAKAZI, Acting ECF No. 21 Commissioner of Social Security, 15 Defendant. 16 17 18 Plaintiff’s counsel moves for an award of attorney fees under 42 U.S.C. § 406(b). ECF 19 No. 21. Plaintiff entered into a contingent fee agreement that provided he would pay counsel 20 twenty-five percent of any award of past-due benefits. ECF No. 21-3. After this court remanded 21 this action for further proceedings, plaintiff was found disabled and awarded $114,556.12 in past- 22 due benefits. ECF No. 21-1. Counsel now seeks attorney’s fees in the amount spent $22,639.03, 23 which is less than twenty-five percent of total past-due benefits plaintiff was awarded. 24 An attorney is entitled to reasonable fees for successfully representing social security 25 claimants in district court. 26 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an 27 attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent 28 1 of the total of the past-due benefits to which the claimant is entitled by reason of such judgment. 2 3 42 U.S.C. § 406(b)(1)(A). Rather than being paid by the government, fees under section 4 406(b) are paid by the claimant from the awarded past-due benefits. Crawford v. Astrue, 586 5 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 6 (2002)). The twenty-five percent statutory maximum fee is not an automatic entitlement; the 7 court must ensure that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808-09 (“We hold 8 that § 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 9 406(b) instructs courts to review for reasonableness fees yielded by those agreements.”). In 10 assessing whether a fee is reasonable, the court should consider “the character of the 11 representation and the results the representative achieved.” Id. at 808. A “court may properly 12 reduce the fee for substandard performance, delay, or benefits that are not in proportion to the 13 time spent on the case.” Crawford, 586 F.3d at 1151. 14 The court finds that the requested fees are reasonable. Counsel’s billing records reflect 15 that he spent 19.1 hours litigation, and a paralegal spent an additional 12.4 hours. ECF No. 21-4. 16 Counsel’s request for $22,639.03, which is less than the statutory maximum, would constitute an 17 hourly rate of approximately $719 for attorney and paralegal services.1 Counsel did not engage in 18 dilatory conduct and his performance was not substandard. Indeed, counsel’s representation 19 resulted in this matter being remanded for further proceedings, which resulted in a favorable 20 decision and an award of benefits. ECF No. 21-2. Given counsel’s experience, the result 21 obtained in this case, and the risk of loss in representing plaintiff, the court finds the hourly rate 22 reasonable. See, e.g., De Vivo v. Berryhill, No. 1:15-cv-1332-EPG, 2018 WL 4262007 (E.D. Cal. 23 Sept. 6, 2018) (awarding fees at effective hourly range of $1,116.26); Jamieson v. Astrue, No. 24 1:09-cv-0490 LJO DLB, 2011 WL 587096 (E.D. Cal. Feb. 9, 2011) (finding fee at effective 25 hourly rate of $1,169.49 reasonable); Naddour v. Colvin, No. 13-CV-1407-BAS (WVG), 2016 26 WL 4248557 (S.D. Cal. Aug. 11, 2016) (awarding fee at effective hourly rate of $1,063); Palos v. 27 1 A paralegal spent an additional 12.4 hours working on this case. The $1,85.29 does not 28 account for this additional time. 1 | Colvin, No. CV 15-04261-DTB, 2016 WL 5110243 (C.D. Cal. Sept. 20, 2016) ) (finding fee at 2 || effective hourly rate of $1,546.39 reasonable). 3 Accordingly, it is hereby ORDERED that: 4 1. Plaintiffs counsel’s motion for attorney’s fees, ECF No. 21, is granted. 5 2. Plaintiffs counsel is awarded $22,639.03 in fees pursuant to 42 U.S.C. § 406(b). 6 7 IT IS SO ORDERED. Dated: _ December 9, 2022 Q_—_—. 9 JEREMY D. PETERSON 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28