(SS) Granados v. Commissioner of Social Security

Filing 37

ORDER GRANTING 35 Motion for Attorney Fees; ORDER for Clerk to Mail a Copy of Order to Plaintiff, signed by Magistrate Judge Helena M. Barch-Kuchta on 11/21/2022. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAUL GRANADOS,

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Plaintiff,

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Case No. 1:19-cv-01426-HBK
ORDER GRANTING MOTION FOR
ATTORNEY'S FEES1

v.
(Doc. No. 35)

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KILOLO KIJAKAZI, ACTING
COMMISSIONER OF SOCIAL
SECURITY,

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ORDER FOR CLERK TO MAIL A COPY OF
ORDER TO PLAINTIFF

Defendant.

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Jonathan O. Peña (“Counsel”) of the Law Offices of Peña & Bromberg, PC, attorney for

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Paul Granados (“Plaintiff”), filed a motion seeking attorney’s fees pursuant to 42 U.S.C. § 406(b)

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on September 1, 2022. (Doc. No. 35). Plaintiff was served with the motion and advised he had

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14 days to object. (Id. at 2, 9). No opposition has been filed as of the date of this Order. (See

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docket). For the reasons set forth below, the motion for attorney’s fees is granted in the amount

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of $26,375.53 subject to a potential offset of $9,821.57 in fees previously awarded on June 30,

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2021, under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). (Doc. No. 34).
I. BACKGROUND

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On October 9, 2019, Plaintiff brought the underlying action seeking judicial review of a

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Both parties have consented to the jurisdiction of a magistrate judge in accordance with 28 U.S.C.
§636(c)(1). (Doc. No. 25).

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final administrative decision denying Plaintiff’s claim for disability insurance benefits under the

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Social Security Act. (Doc. No. 1). On December 22, 2020, the Court granted the parties’ joint

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stipulation to voluntary remand for further proceedings pursuant to sentence four of 42 U.S.C. §

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405(g) and judgment was entered. (Doc. Nos. 31-32). The Court entered an award of $9,821.57

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for attorney fees under the Equal Access to Justice Act (“EAJA”) on June 30, 2021. (Doc. Nos.

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34). In his attached declaration, Counsel states he has not yet received the previously awarded

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$9,821.57 in EAJA fees and that “[u]pon receipt, [he] will promptly refund the EAJA fee if any to

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the Plaintiff.” (Doc. No. 35 at 7).

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On remand, the Commissioner found Plaintiff disabled since August 2012. (Doc. No. 35-

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1). Plaintiff was awarded $105,502.122 in retroactive benefits. (Doc. No. 35-1 at 5). On

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September 1, 2022, Counsel filed this motion for attorney’s fees in the amount of $26,375.53,

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with a potential offset of $9,871.57 for EAJA fees already awarded, should Counsel receive the

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EAJA fee awarded on June 30, 2021. (Doc. No. 35). Counsel argues these fees are reasonable

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because the contingency fee agreement, which Plaintiff signed, permits Counsel to retain 25% of

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the past-due benefits. (Doc. No. 35 at 4; Doc. No. 35-2). Defendant did not file any response to

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the fee requested and the time to do so has expired. (See docket).

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II. APPLICABLE LAW

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Attorneys may seek a reasonable fee under the Social Security Act for cases in which they
have successfully represented social security claimants. Section 406(b) allows:

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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 . .
..

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42 U.S.C. § 406(b)(1)(A). Counsel for a plaintiff may recover attorneys’ fees under both 42

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Plaintiff calculated the total amount of past due benefits by multiplying the 25% of past due benefits
amount by four ($26,375.53 x 4). (Doc. No. 35 at 3). The Court also notes that the total amount of
withholding was calculated by adding the amount withheld by the Commissioner from Plaintiff’s past-due
benefits in the amount of $20,907.78, and the amount withheld from Plaintiff’s family’s past-due benefits
in the amount of $5,467.75, for a total of $26,375.53. (See Doc. No. 35-1 at 5).

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U.S.C. § 406(b) and EAJA. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). Counsel, however,

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must refund to the plaintiff the amount of the smaller fee. Id.

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Fees in social security cases “are usually set in contingency-fee agreements and are

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payable from past-due benefits awarded to the claimant.” Biggerstaff v. Saul, 840 F. App'x 69, 70

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(9th Cir. 2020). The fee is not borne by the Commissioner. Crawford v. Astrue, 586 F.3d 1142,

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1147 (9th Cir. 2009). This provision’s purpose is in part to “ensure that attorneys representing

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successful claimants would not risk nonpayment of [appropriate] fees.” Gisbrecht, 535 U.S. at

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805 (internal quotations omitted). When weighing the adequacy of requested attorney’s fees,

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Courts should respect “the primacy of lawful attorney-client fee agreements.” Id. at 793.

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Counsel still bears the burden, however, of showing the requested fees are reasonable. Id. at 807.

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In determining reasonableness, the court may consider the experience of the attorney, the results

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they achieved, and whether there is evidence the attorney artificially increased the hours worked

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or the hourly rate charged. Id. at 807-808; Crawford, 586 F.3d at 1151. Any 406(b) award is

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offset by attorney fees granted under the EAJA. Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d

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1215, 1219 (9th Cir. 2012)

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III. ANALYSIS
Here, Plaintiff signed a fee agreement providing, “the fee for successful prosecution of

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this matter is 25% of the backpay awarded…” (Doc. No. 35-2). Counsel was ultimately

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successful in securing $105,502.12 in retroactive benefits for Plaintiff. In support of this motion,

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Counsel submitted a time sheet indicating the firm expended 47.5 hours in attorney time on this

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matter. (Doc. No. 35-3). The time Counsel spent in successfully attaining Plaintiff’s benefits

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does not appear inflated.

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Counsel’s request for $26,375.53 in fees for 47.5 hours of work results in an hourly rate of

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$555.27 for the attorney work. In 2008, the Ninth Circuit found similar hourly rates reasonable in

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social security contingency fee arrangements. Crawford, 586 F.3d at 1153 (explaining that the

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majority opinion found reasonable effective hourly rates equaling $519.00, $875.00, and $902.00)

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(J. Clifton, concurring in part and dissenting in part). More recently, this Court approved an

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hourly rate of $1,025.22 for paralegal and attorney time. Mayfield v. Comm’r of Soc. Sec., No.
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1:16-cv-01084-SAB, ECF No. 24, at 5 (E.D. Cal. March 19, 2020). Attorney hourly rates

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inevitably rise as their experience increases, and Counsel has been practicing social security law

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since 1997. (Doc. No. 26 at 22, ¶15). Based on the foregoing, the Court finds the requested fees

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of $26,375.53 are reasonable. Gisbrecht, 535 U.S. at 807-08.

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An award of attorney’s fees pursuant to 406(b) in the amount of $26,375.53 is, therefore,

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appropriate. An award of § 406(b) fees, however, must be offset by any prior award of attorneys’

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fees granted under the EAJA. 28 U.S.C. § 2412(d); Gisbrecht, 535 U.S. 796. Should Counsel

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receive the $9,821.57 previously awarded pursuant to the EAJA, Counsel shall refund this

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amount to Plaintiff.

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Accordingly, it is ORDERED:

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1. Plaintiff’s Counsel’s motion for an award of attorney’s fees is GRANTED (Doc. No.

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35).
2. Plaintiff’s Counsel is awarded $26,375.53 in attorney fees pursuant to 42 U.S.C. §

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406(b).

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3. In the event Counsel receives any amount of the $9,821.57 in previously awarded

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EAJA fees, Counsel shall refund that amount of the § 406(b) fees awarded as an offset for the

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EAJA fees previously awarded pursuant to 28 U.S.C. § 2412(d). (Doc. No. 34).

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4. The Clerk of the Court is respectfully directed to serve a copy of this Order on Plaintiff
Paul Granados, 721 W. Franklin Ave., Fresno, CA, 93706.

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Dated:

November 21, 2022
HELENA M. BARCH-KUCHTA
UNITED STATES MAGISTRATE JUDGE

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