(SS) Guimarra v. Commissioner of Social Security, No. 1:2013cv01690 - Document 21 (E.D. Cal. 2015)
Court Description: ORDER GRANTING 19 Motion for Attorney Fees signed by Magistrate Judge Stanley A. Boone on 10/30/2015. (Hernandez, M)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOHN GIUMARRA, 12 13 14 Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Case No. 1:13-cv-01690-SAB ORDER GRANTING PETITIONER’S MOTION FOR ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(b) (ECF Nos. 19, 20) 15 Defendant. 16 17 18 Petitioner Roger D. Drake (“Counsel”), attorney for Plaintiff John Giumarra (“Plaintiff”), 19 filed the instant motion for attorney fees on October 13, 2015. Counsel requests fees in the 20 amount of $5,460.00 pursuant to 42 U.S.C. § 406(b)(1). Plaintiff has not objected to the request. 21 On October 20, 2015, Defendant Social Security Commissioner, as a de facto trustee for Plaintiff, 22 filed a response to Petitioner’s motion providing an analysis of the fee request. 23 I. 24 BACKGROUND 25 Plaintiff filed the instant complaint challenging the denial of social security benefits on 26 October 19, 2013. (ECF No. 1.) On June 26, 2014 the parties filed a stipulation for voluntary 27 remand pursuant to sentence four of 42 U.S.C. 405(g). (ECF No. 14.) The Court entered 28 judgment in the Commissioner's favor on June 30, 2014. (ECF No. 16.) 1 1 On August 28, 2014, the parties filed a stipulation for an award of attorney fees pursuant 2 to the Equal Access to Justice Act (“EAJA”). On January 18, 2015, an order issued awarding 3 Plaintiff attorney fees of $1,900.00. (ECF No. 18.) 4 On remand, the ALJ found that Plaintiff was disabled as of October 1, 2011, and past 5 benefits were awarded in the amount of 45,840.00. (ECF No. 19-1 at 4, 6.) The Commissioner 6 withheld $11,460.00 from the past-due benefit for attorney fees. This amount equals 25 percent 7 of the retroactive benefit award. (Id. at 6.) Petitioner’s firm was paid $6,000.00 of this award for 8 representation of Plaintiff at the administrative level, leaving $5,460.00 for attorney fees for 9 representation in the court proceedings. (Id. at 6-7.) 10 11 In the instant motion, Petitioner seeks $5,460.00 for 11.4 hours spent working on Plaintiff’s case. (ECF No. 19-3.) 12 II. 13 LEGAL STANDARD 14 In relevant part, 42 U.S.C. § 406(b)(1)(A) provides that when a federal court “renders a 15 judgment favorable to a claimant . . . who was represented before the court by an attorney,” the 16 court may allow reasonable attorney fees “not in excess of 25 percent of the total of the past-due 17 benefits to which the claimant is entitled by reason of such judgment.” The payment of such 18 award comes directly from the claimant’s benefits. 42 U.S.C. § 406(b)(1)(A). 19 The Supreme Court has explained that a district court reviews a petition for section 406(b) 20 fees “as an independent check” to assure that the contingency fee agreements between the 21 claimant and the attorney will “yield reasonable results in particular cases.” 22 Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful 23 attorney-client fee agreements,” and is to look first at the contingent-fee agreement, and then test 24 it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009). Agreements 25 seeking fees in excess of twenty-five percent of the past-due benefits awarded are not 26 enforceable. Crawford, 586 F.3d at 1148. The attorney has the burden of demonstrating that the 27 fees requested are reasonable. Gisbrecht, 535 U.S. at 808; Crawford, 586 F.3d at 1148. 28 Gisbrecht v. In determining the reasonableness of an award, the district court should consider the 2 1 character of the representation and the results achieved. Gisbrecht, 535 U.S. at 800. Ultimately, 2 an award of section 406(b) fees is offset by an award of attorney fees granted under the EAJA. 3 28 U.S.C. § 2412. Gisbrecht, 535 U.S. at 796. 4 The Ninth Circuit has identified several factors that a district court can examine under 5 Gisbrecht in determining whether the fee was reasonable. In determining whether counsel met 6 his burden to demonstrate that the requested fees are reasonable, the court may consider (1) the 7 standard of performance of the attorney in representing the claimant; (2) whether the attorney 8 exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of 9 past-due benefits; and (3) whether the requested fees are excessively large in relation to the 10 benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586 11 F.3d at 1151. 12 III. 13 DISCUSSION 14 The Court has conducted an independent check to insure the reasonableness of the 15 requested fees in relation to this action. Gisbrecht, 122 S.Ct. at 1828. Here, the fee agreement 16 between Plaintiff and Petitioner provides for a fee consisting of “25% of the backpay awarded 17 upon reversal of any unfavorable ALJ decision for work before” the Social Security 18 Administration or the Court. (Social Security Representation Agreement, attached to Motion, 19 ECF No. 19-2.) Plaintiff has been awarded benefits from March 2012 through July 2015 in the 20 amount of $45,840.00. (ECF No. 19-1 at 6.) In determining the reasonableness of the fees 21 requested, the Court is to apply the test mandated by Gisbrecht. 22 A. Reasonableness of Fee Request Under Gisbrecht 23 There is no indication that a reduction of fees is warranted for substandard performance. 24 Counsel is an experienced, competent attorney who secured a successful result for Plaintiff early 25 in the litigation. Plaintiff agreed to a 25 percent fee at the outset of the representation and 26 Petitioner is seeking $5,460.00. Petitioner has previously been paid $6,000.00 for representing 27 Plaintiff before the Social Security Administration. The total fee paid to Petitioner ($6,000.00 28 plus $5,460.00 which equals $11,460.00) would represent 25 percent of the past due award. 3 1 The $11,460.00 fee is not excessively large in relation to the past-due award of 2 $45,840.00. In making this determination, the Court recognizes the contingent nature of this case 3 and Counsel’s assumption of the risk of going uncompensated. Hearn v. Barnhart, 262 F.Supp.2d 4 1033, 1037 (N.D. Cal. 2003). 5 B. LodeStar Cross Check for Reasonableness 6 In order to determine whether the fee requested in this action is reasonable, the Court shall 7 also consider the lode star calculation. Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) 8 (the district court can consider the lodestar calculation, but only as an aid in assessing the 9 reasonableness of the fee). The Ninth Circuit utilizes the “lodestar” approach for assessing 10 reasonable attorneys’ fees, where the number of hours reasonably expended is multiplied by a 11 reasonable hourly rate. Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013); 12 Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 978 (9th Cir. 2008). 13 1. Reasonable Hours 14 Initially, the Court shall review the billing records to determine if the time that Petitioner 15 billed in this action is reasonable. Although Grisbrecht did not specifically address that the hours 16 billed must be reasonably spent on the action, any other interpretation would undermine the 17 reasonableness check. See Statler v. Astrue, No. CV 05-01213 AN, 2009 WL 195955, at *5 18 (C.D. Cal. Jan. 26, 2009) (considering reasonableness of hours billed in determining similar fee 19 request). 20 In reviewing the itemized record of the time spent working on this action, the Court finds 21 that several of the entries record excessive amounts of time for the service provided. On October 22 19, 2013, Petitioner spent .4 hours or 18 minutes preparing the civil cover sheet which is a one 23 page check box form which generally just required filing in the names of the parties and 24 Petitioner’s contact information. (ECF No. 1-1.) The Court finds that .1 hours would be a 25 reasonable amount of time to have completed this generic form that is filed in all cases. 26 On December 6, 2013, Petitioner recorded .4 hours to prepare and file the consent form, 27 which similarly is a single page generic form which is filed in all cases and to which counsel 28 affixed his signature. (ECF No. 4-2; see also Consent to Proceed Before a United States 4 1 Magistrate Judge filed in Gallardo v. Michael J. Astrue, No. 1:12-cv-01706-SKO (E.D. Cal. 2 December 19, 2012) (in which Petitioner filed an identical form).) The Court finds that .1 hours 3 would be a reasonable amount of time to bill for this task. 4 On December 17, 2013, Petitioner billed for .3 hours to prepare and file the proof of 5 service. (ECF No. 1-1) However, this is another form document that would be filed in all Social 6 Security cases and would only requiring minor edits to be filed herein. The Court finds that .1 7 hours would be a reasonable amount of time to bill for the minor edits and filing of this 8 document. 9 On April 30, 2014, Petitioner recorded .9 hours for legal research regarding the duties of 10 the ALJ to weigh medical opinions. (Id.) This appears an unreasonable amount of time for an 11 attorney with twelve years of experience who has represented over 150 clients in Social Security 12 appeals and nearly 1,000 administrative hearings to research an issue that is present in virtually 13 every Social Security case. (ECF No. 19 at ¶¶ 6, 7.) The Court finds that .4 hours would be a 14 reasonable amount of time to research any current changes in the standards regarding the ALJ’s 15 duty to weigh medical opinions. 16 On June 30, 2014, Petitioner billed for .3 hours to review the order remanding this action 17 and judgment issued in this action. (ECF No. 1-1.) The remand order was simply the stipulation 18 prepared by the parties which Petitioner had previously billed for reviewing on two separate 19 occasions and the judgment is merely a one page standard order issued in all dismissals. The 20 Court finds that .1 hours would be a reasonable amount of time to have reviewed both of these 21 documents. 22 23 The Court finds that making these deductions, Petitioner reasonably expended 9.9 hours on this action. 24 2. Reasonable Hourly Rate 25 When considering the total amount requested by Petitioner for representing Plaintiff in 26 federal court, the fee request translates to approximately $551.00 per hour for the time Petitioner 27 expended in this action. In Crawford the appellate court found that a fee of $875 and $902 per 28 hour, for time of both attorneys and paralegals, was not excessive. Crawford, 586 F.3d at 1152 5 1 (dissenting opinion). 2 consideration that the case was taken on a contingency basis and Petitioner’s risk that he would 3 not be compensated for the time expended in this action. The Court finds that this is a reasonable hourly rate taking into 4 C. Conclusion 5 The Court finds that the requested fees are reasonable when compared to the amount of 6 work Counsel performed in representing Plaintiff in court. Petitioner’s representation of the 7 claimant resulted in the action being remanded for further proceedings and benefits were 8 awarded. Counsel also submitted a detailed billing statement which supports the request. 9 Fee awards may be made under both section 406(b) and EAJA, but the claimant’s attorney 10 must generally refund to the claimant the amount of the smaller fee. Gisbrecht, 535 U.S. at 796. 11 Therefore, Petitioner shall refund to Plaintiff the amount of the EAJA fee that was previously 12 awarded. 13 VI. 14 ORDER 15 16 For the reasons stated above, the Court finds that the fees sought by Petitioner pursuant to Section 406(b) are reasonable. Accordingly, IT IS HEREBY ORDERED that: 17 1. 18 Petitioner’s motion for an award of attorney fees pursuant to Section 406(b) in the amount of $5,460.00 is GRANTED; and 19 2. 20 Petitioner’s award shall be offset by $1,900.00 for the EAJA fees previously awarded pursuant to 28 U.S.C. § 2412(d).. 21 22 23 IT IS SO ORDERED. Dated: October 30, 2015 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 6
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