Nunez-Galindo v. Commissioner of Social Security
Filing
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ORDER signed by Magistrate Judge Carolyn K. Delaney on 1/22/2019 AWARDING plaintiff's counsel $20,000.00 in attorney fees to be offset in the amount of $3,600.00 previously awarded under EAJA. (Huang, H)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JOSE MANUEL DE JESUS NUNEZGALINDO,
Plaintiff,
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No. 2:16-cv-00837 CKD
ORDER
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
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Based on 42 U.S.C. § 406(b), counsel for plaintiff in the above-entitled action seeks an
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award of attorney fees in the amount of $20,000 for 20.25 hours of professional time devoted to
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the representation of plaintiff before this court. Counsel concedes that this amount should be
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offset in the amount of $3,600.00 for fees previously awarded under EAJA.
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42 U.S.C. § 406(b)(1)(A) provides, in relevant part:
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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 by
reason of such judgment.
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Rather than being paid by the government, fees under the Social Security Act are awarded out of
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the claimant’s disability benefits. Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991),
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receded from on other grounds, Sorenson v. Mink, 239 F.3d 1140, 1149 (9th Cir. 2001).
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However, the 25 percent statutory maximum fee is not an automatic entitlement; the court also
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must ensure that the requested fee is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 808-09
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(2002) (“We hold that § 406(b) does not displace contingent-fee agreements within the statutory
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ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those
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agreements.”). “Within 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.” Id. at 807.
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On April 25, 2016, plaintiff agreed to pay counsel up to 25 percent of any past-due
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benefits award. (ECF No. 27-1.) On February 13, 2017, after plaintiff filed a motion for
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summary judgment, the undersigned approved the parties’ stipulation to remand this action for
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further administrative proceedings. (ECF No. 23.) On remand, an administrative law judge
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found plaintiff disabled as of September 2, 2009 and awarded past due Title II benefits. (ECF
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No. 27-3.) The November 13, 2018 Notice of Award indicated that the Commissioner withheld
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$26,491.75 for attorney fees, or 25 percent of the $105,967.00 award of past-due benefits. (Id.)
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Counsel seeks fees for 20.25 hours. Based on the quality of counsel’s representation and
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the results achieved in this case, the undersigned finds the number of hours expended to be
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reasonable. The hourly rate of $1,173.02 is also reasonable under the circumstances. See
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Knowles v. Berryhill, 2019 WL 142275, *3 (E.D. Cal., Jan. 9, 2019) (collecting cases approving
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social security attorney’s fees exceeding $1,000 per hour pursuant to contingency agreements).
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Accordingly, the undersigned will award the amount of attorney fees requested.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s counsel is awarded $20,000.00
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in attorney fees pursuant to 28 U.S.C. § 406, to be offset in the amount of $3,600.00 previously
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awarded under EAJA.
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Dated: January 22, 2019
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2/nunez-galindo0837.fee-406(a)
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