Banuelos v. Berryhill ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BEATRIZ B., Case No.: 3:19-cv-785-AHG 12 Plaintiff, ORDER GRANTING PLAINTIFF’S COUNSEL’S MOTION FOR 13 v. ATTORNEY FEES PURSUANT TO 14 ANDREW M. SAUL, Commissioner of 42 U.S.C. § 406(B) Social Security,1 15 [ECF No. 23] Defendant. 16 17 Before the Court is Plaintiff’s counsel’s motion for attorney fees pursuant to 42 18 U.S.C. § 406(b). ECF No. 23. For the reasons set forth below, the Court GRANTS the 19 motion. 20 I. BACKGROUND 21 Plaintiff Beatriz B. (“Plaintiff”) filed this action on April 29, 2019, seeking review 22 of the Commissioner of Social Security’s (“Commissioner”) denial of her application for 23 social security disability and supplemental security income benefits. ECF No. 1. The 24 25 26 1 Andrew Saul became the Commissioner of Social Security on June 17, 2019. Although 27 Plaintiff originally brought this action against Former Acting Commissioner Nancy Berryhill, this case may properly proceed against Andrew Saul pursuant to 42 28 1 parties consented to proceed before a Magistrate Judge on May 7, 2019. ECF No. 5. 2 Pursuant to the Court’s Order, the parties filed a Joint Motion for Judicial Review on 3 December 9, 2019, stating their positions on the disputed issues in the case. ECF No. 17. 4 On July 16, 2020, the Court reversed the Commissioner’s denial of disability insurance 5 benefits and remanded to the Administrative Law Judge (“ALJ”) for the calculation and 6 award of benefits. ECF No. 18. On remand, the Commissioner awarded Plaintiff 7 $63,701.60 in total past due benefits. ECF No. 23-1 at 1; ECF No. 23-3. On 8 September 1, 2020, pursuant to a joint motion, this Court awarded Plaintiff $4,450.00 in 9 attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). ECF 10 No. 22; ECF No. 19 (jointly requesting that Plaintiff’s counsel receive $205.25 per hour 11 for 19.5 hours of work performed and $143 per hour for 3.4 hours of paralegal work, with 12 the total request discounted to $4,450.00). 13 In the instant motion, Plaintiff’s counsel seeks an order awarding Brian C. Shapiro, 14 Esq. (Plaintiff’s counsel) attorney fees in the amount of $15,925.40 for representing 15 Plaintiff in this action, and further ordering Mr. Shapiro to reimburse Plaintiff the amount 16 of $4,450.00 for the EAJA fees awarded by the Court. ECF No. 23-1 at 2–7, 11. The 17 Commissioner has taken no position on the reasonableness of counsel’s request. Though 18 she was notified twice regarding her ability to oppose the motion (see ECF No. 23 at 2; 19 ECF No. 23-1 at 14; ECF No. 25), Plaintiff has also taken no position on the reasonableness 20 of counsel’s request. 21 II. LEGAL STANDARD 22 “Under 42 U.S.C. § 406(b), a court entering judgment in favor of [a social security] 23 claimant who was represented by an attorney ‘may determine and allow as part of its 24 judgment a reasonable fee for such representation, not in excess of 25 percent of the total 25 of the past-due benefits to which the claimant is entitled by reason of such judgment.’” 26 Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (quoting 42 U.S.C. 27 § 406(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney for the successful 28 1 claimant must show that the fee sought is reasonable for the services rendered.” Gisbrecht 2 v. Barnhart, 535 U.S. 789, 807 (2002). 3 “[A] district court charged with determining a reasonable fee award under 4 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee agreements,’ . . . 5 ‘looking first to the contingent-fee agreement, then testing it for reasonableness[.]’” 6 Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). When determining 7 reasonableness of the fee award, courts must consider “whether the amount need be 8 reduced, not whether the loadstar amount should be enhanced.” Crawford, 586 F.3d at 9 1149. While there is not a definitive list of factors, courts should consider “the character of 10 the representation and the results the representative achieved.” Gisbrecht, 535 U.S. at 808. 11 “The court may properly reduce the fee for substandard performance, delay, or benefits 12 that are not in proportion to the time spent on the case.” Crawford, 586 F.3d at 1151. 13 Finally, “an EAJA award offsets an award under Section 406(b), so that the [amount 14 of the total past-due benefits the claimant actually receives] will be increased by the . . . 15 EAJA award up to the point the claimant receives 100 percent of the past-due benefits.” 16 Gisbrecht, 535 U.S. at 796. 17 III. DISCUSSION 18 On August 26, 2019, Plaintiff and the Law Offices of Lawrence D. Rohlfing entered 19 20 21 2 The Court notes that the lodestar calculation does not apply to the instant motion. See Gisbrecht, 535 U.S. at 802 (explaining that the lodestar method is applicable to “disputes 22 over the amount of fees properly shifted to the loser in the litigation” whereas “Section 23 406(b) is of another genre: [i]t authorizes fees payable from the successful party’s recovery”); see also Crawford, 586 F.3d at 1148 (“SSDI attorney[] fees, in contrast, are 24 not shifted. They are paid from the award of past-due benefits and the amount of the fee, 25 up to 25% of past-due benefits, is based on the agreement between the attorney and the client.”); see, e.g., Shultz v. Comm’r of Soc. Sec., No. 17cv1823-CAB-MDD, 2020 U.S. 26 Dist. LEXIS 147006, at *3–*4 (S.D. Cal. Aug. 14, 2020) (not applying the lodestar 27 calculation, when the motion was not opposed by the Commissioner or plaintiff); Berry v. Saul, No. 16cv1700-MMA-AGS, 2019 WL 6467807 at *2 n.2 (S.D. Cal. Dec. 2, 2019) 28 1 into a Social Security Representation Agreement (“Agreement”). ECF No. 23-2. Pursuant 2 to the Agreement, Plaintiff agreed to pay counsel a contingency-fee of up to 25% of past- 3 due benefits awarded by the Commissioner. Id.3 The administrative proceedings became 4 final on September 8, 2020, when the Social Security Administration issued its Notice of 5 Award. See ECF No. 23-3 at 1. Plaintiff’s counsel seeks a total award of $15,925.40 in 6 attorney fees and “bases this fee on 25% of the net payable past due benefits.” ECF No. 7 23-1 at 2; see ECF No. 23-3 (awarding Plaintiff $63,701.60 in total past due benefits). 8 Counsel argues that the amount sought in the instant motion “falls within the range of 9 reasonable,” considering counsel’s firm “expended 22.9 hours of attorney time and 10 paralegal time in the representation of [Plaintiff] in this matter through the entry of the 11 order of remand.” Id. at 2, 12. Additionally, if granted by the Court, this award would then 12 be further reduced by the $4,450.00 that has already been received in attorney fees under 13 the EAJA. Id. at 2 (requesting that that the Court order counsel to reimburse Plaintiff in the 14 amount of $4,450.00 for the EAJA fees). 15 Upon careful review of the documents submitted, and the applicable law, the Court 16 finds that counsel’s fee request is reasonable. Plaintiff’s counsel and his paralegal expended 17 22.9 hours on this case.4 Id. at 12. The de facto hourly rate is $695.43,5 which falls on the 18 low end of the range that has been approved by courts in similar cases, including in this 19 20 21 3 As an initial matter, the Court notes that the contingency fee agreement between Plaintiff 22 and her counsel is within the statutory ceiling. Compare 42 U.S.C. § 406(b)(1)(A)) with ECF No. 23-3 at ¶ 4. 23 4 While every case is different, the amount of time spent on this case (19.5 hours by counsel 24 and 3.4 hours by counsel’s paralegal) are similar to the underlying cases approved in 25 Crawford. 586 F.3d at 1145 (The time spent in the three underlying cases was: 19.5 hours by counsel and 4.5 hours by paralegal in Crawford; 17.45 hours by counsel and 4.7 hours 26 by paralegal in Washington; and 26.9 hours by counsel and 2.6 hours by paralegal in Trejo). 27 5 The de facto hourly rate is calculated by dividing the $15,925.40 fee requested by 22.9 28 1 district. See Crawford, 586 F.3d at 1153 (approving de facto hourly rates of $519, $875, 2 and $902 in 2009); Kikkert v. Berryhill, No. 14cv1725-MMA-JMA, 2018 WL 3617268, at 3 *2 (S.D. Cal. July 30, 2018) (approving de facto hourly rate of $943.55); Martinez v. 4 Berryhill, No. 13-cv-272-JLS-JLB, 2017 WL 4700078, at *3 (S.D. Cal. Oct. 19, 2017) 5 (approving de facto hourly rate of $886.52 and noting that “[w]hile such an hourly rate is 6 on the higher end charged for social security appeals, the Court nonetheless concludes that 7 the fee is reasonable in the present case”); Richardson v. Colvin, No. 15-cv-1456-MMA- 8 BLM, 2017 WL 1683062, at *2 (S.D. Cal. May 2, 2017) (approving de facto hourly rate 9 of $770); Likens v. Colvin, No. 11-CV-0407-LAB-BGS, 2014 WL 6810657, at *2 (S.D. 10 Cal. Dec. 2, 2014) (approving de facto hourly rate of $666.68); Nash v. Colvin, No. 12-cv- 11 2781-GPC-RBB, 2014 WL 5801353, at *2 (S.D. Cal. Nov. 7, 2014) (approving de facto 12 hourly rate of $656); Sproul v. Astrue, No. 11-cv-1000-IEG-DHB, 2013 WL 394056, at *2 13 (S.D. Cal. Jan. 30, 2013) (approving de facto hourly rate of $800). 14 Moreover, “the Court finds that Plaintiff’s counsel assumed a substantial risk of not 15 recovering attorney[] fees. At the time that Plaintiff and his counsel signed the contingency 16 fee agreement, Plaintiff had an unfavorable ruling from the ALJ and had just filed this 17 action for judicial review.” Shultz, 2020 U.S. Dist. LEXIS 147006, at *5–6; see also 18 Moreno v. Berryhill, No. 13-cv-8492-PLA, 2018 WL 3490777, at *3 (C.D. Cal. July 19, 19 2018) (“[c]ounsel assumed the risk of nonpayment inherent in a contingency agreement, 20 [and] and the fee does not exceed … the 25 percent statutory cap[.]”). 21 Plaintiff’s counsel has also submitted a billing statement detailing the work 22 performed to litigate this case in federal court. ECF No. 23-4. There is nothing in the record 23 to suggest substandard performance by counsel, or that counsel delayed this litigation in 24 order to amass more in potential fees. As a result of counsel’s work, Plaintiff received a 25 favorable decision and a significant award of past-due benefits. Thus, none of the factors 26 outlined in Gisbrecht favor reducing the fee award, and the Court concludes that counsel’s 27 request for attorney fees is reasonable and that it does not constitute a “windfall” to 28 Plaintiff’s counsel. See Gisbrecht, 535 U.S. at 808. 1 IV. CONCLUSION 2 For the reasons set forth above, the Court GRANTS Plaintiff’s counsel’s motion for 3 || attorney fees pursuant to 42 U.S.C. §406(b). The Court AWARDS Brian C. Shapiro, Esq. 4 ||attorney fees in the amount of $15,925.40.° The Court HEREBY ORDERS 5 || Brian C. Shapiro, Esq to reimburse Plaintiff Beatriz B. the amount of $4,450.00 for EAJA 6 || fees awarded by this Court. 7 g IT IS SO ORDERED. Dated: December 23, 2020 9 H. Myolare 10 Honorable Allison H. Goddard United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® As such, the Court DIRECTS the Commissioner to certify the fee of $15,925.40 payable to Law Offices of Lawrence D. Rohlfing.