Matthew Kyle Kanoff v. Carolyn W. Colvin

Filing 27

ORDER AWARDING ATTORNEYS FEES PURSUANT TO 42 U.S.C. 406(b) by Magistrate Judge Frederick F. Mumm. The Court finds and concludes that $17,000.00 in fees is reasonable. The petition for attorney fees pursuant to 42 U.S.C. 406(b) is granted. Upon payment by the Commissioner of $17,000 out of the withheld past due benefits, Plaintiff's counsel shall refund to Plaintiff the lesser EAJA fee of $3,800 (which Plaintiff's counsel has already received). (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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MATTHEW KYLE KANOFF,
Plaintiff,

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v.

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NANCY BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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Case No. CV 8:16-778 FFM
ORDER AWARDING ATTORNEY
FEES PURSUANT TO 42 U.S.C. §406(b)

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I. INTRODUCTION

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After remand, the Social Security Administration (“Defendant”) awarded

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plaintiff Matthew Kyle Kanoff (“Plaintiff”) $97,088 in past-due benefits. Now

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pending before the Court is the petition of Plaintiff’s counsel for attorney fees in the

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amount of $17,000.00 for Plaintiff’s representation in this matter.
Defendant has filed a response to Plaintiff’s motion that neither opposes nor

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assents to the relief requested by counsel. After careful consideration, the Court finds

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in this case that the $17,000 requested for 18.8 hours of attorney time and 3.5 hours of

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paralegal time is reasonable.

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II. DISCUSSION AND ANALYSIS

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Plaintiff’s counsel brings this petition pursuant to 42 U.S.C. §406(b). Section

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406(b) provides in relevant part:

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Whenever a court renders a judgment favorable to a claimant under this

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subchapter who was represented before the court by an attorney, the court

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may determine and allow as part of its judgment a reasonable fee for such

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representation, not in excess of 25 percent of the total of the past-due

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benefits to which the claimant is entitled by reason of such judgment . . . .

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In Gisbrecht, the Supreme Court resolved a division among the federal circuits

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on the appropriate method of calculating attorney fees under §406(b). Rejecting the

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“lodestar method” which several of the circuits (including the Ninth Circuit) had been

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applying, the Supreme Court held:

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[Section] 406(b) does not displace contingent-fee agreements as the

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primary means by which fees are set for successfully representing Social

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Security benefits claimants in court. Rather, §406(b) calls for court

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review of such arrangements as an independent check, to assure that they

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yield reasonable results in particular cases. Congress has provided one

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boundary line: Agreements are unenforceable to the extent that they

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provide for fees exceeding 25 percent of the past-due benefits. . . . Within

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the 25 percent boundary, . . . the attorney for the successful claimant must

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show that the fee sought is reasonable for the services rendered.

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535 U.S. at 807 (footnotes omitted).
In determining whether the amount of fees sought by Plaintiff’s counsel is

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“reasonable for the services rendered” here, the Court has considered a number of

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factors. Several of these factors fall in favor of Plaintiff’s counsel.

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Under Gisbrecht, the starting point of the analysis is the agreement between

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Plaintiff and his counsel. Here, the relevant terms of the contingent fee agreement

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between Plaintiff and Plaintiff’s counsel are as follows:
If this matter requires judicial review of any adverse decision of the

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Social Security Administration, the fee for successful prosecution of this

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matter is a separate 25% of the backpay awarded upon reversal of

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any unfavorable ALJ decision for work before the court. . . .

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Exhibit 1, attached to Declaration of Brian C. Shapiro (emphasis in original).

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Plaintiff agreed to up to a 25% contingency and the $17,000 sought would be

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approximately 18% of the award. The Court has no basis for finding that there was

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any fraud or overreaching by counsel in the making of the contingent fee agreement

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with Plaintiff.
Second, the amount sought by Plaintiff’s counsel is not in excess of the 25%

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statutory limit.

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Third, there is no excessive delay attributable to counsel which would unduly

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increase the past due benefits accumulated during the pendency of the case in court.

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Finally, the Court must assess the overall reasonableness of the fee in light of

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the character of the representation and the results obtained. In this regard, Plaintiff’s

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counsel has the burden of demonstrating reasonableness. Gisbrecht, 535 U.S. at 807

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(“the attorney for the successful claimant must show that the fee sought is reasonable

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for the services rendered”).

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Here, Plaintiff’s counsel obtained an order for remand for an additional hearing

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after full briefing in this Court. The time expended by counsel (18.8 hours of attorney

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time and 3.5 hours of paralegal time) is reasonable. The effective hourly rate for

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counsel, assuming a paralegal rate of $150 per hour for the 3.5 hours of paralegal

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time, if Plaintiff’s counsel receives all of the fees he seeks, would be approximately

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$876.

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The Court has reviewed other decisions awarding fees in this context for some

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guidance. See, e.g., Palos v. Colvin, 2016 WL 5110243 (C.D. Cal. 2016) (collecting

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cases and awarding an effective hourly rate of $1,546.39). In Crawford v. Astrue, 586

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F.3d 1142 (9th Cir. 2009) (en banc), the Ninth Circuit held that a district court should

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test for reasonableness by examining “whether the amount [requested] need be

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reduced, not whether the loadstar amount should be enhanced.” Id. at 1149. Although

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necessarily imprecise, the Court must award an amount that is reasonable under the

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circumstances. In Crawford, the Ninth Circuit approved of fees ranging from $519

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per hour to $902 per hour. Id. at 1153. The Court sees no justification for reducing

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Plaintiff’s counsel’s fee here.

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III. CONCLUSION

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Based on the foregoing considerations, the Court finds and concludes that

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$17,000.00 in fees is reasonable. The petition for attorney fees pursuant to 42 U.S.C.

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§406(b) is granted. Upon payment by the Commissioner of $17,000 out of the

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withheld past due benefits, Plaintiff’s counsel shall refund to Plaintiff the lesser EAJA

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fee of $3,800 (which Plaintiff’s counsel has already received).

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IT IS SO ORDERED.

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DATED: July 2, 2019

/S/ FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge

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