Zumpano v. Commissioner of Social Security

Filing 28

ORDER signed by Magistrate Judge Dennis M. Cota on 1/10/2020 GRANTING 23 , 27 Motions for Attorney Fees. Counsel is awarded fees in the amount of $12,073.75, paid to counsel by the Commissioner out of past-due benefits awarded to plaintiff to the extent such benefits have not already been paid to plaintiff. Counsel shall reimburse to plaintiff $6,000.00 previously paid under the EAJA. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TERESA VICTORIA ZUMPANO

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Plaintiff,

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No. 2:17-CV-1006-DMC

v.

ORDER

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

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Plaintiff, who was proceeding with retained counsel, brought this action for

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judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C.

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§ 405(g). Pursuant to the written consent of all parties, this case was before the undersigned as

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the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c).

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Final judgment was entered on February 8, 2018. Pursuant to stipulation, plaintiff’s counsel has

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previously been awarded $6,000.00 in attorney’s fees under the Equal Access to Justice Act

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(EAJA). Pending before the court is plaintiff’s counsel’s petition for the award of attorney’s fees

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in the amount of $12,073.75 in fees under 42 U.S.C. § 406(b). Plaintiff was provided notice of

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counsel’s motion and has not filed any response thereto.

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I. PROCEDURAL HISTORY

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Plaintiff initiated this action for judicial review of a final decision of the

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Commissioner of Social Security on May 14, 2017. Plaintiff’s representation was provided

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pursuant to a March 5, 2018, contingent-fee agreement whereby plaintiff agreed to pay counsel

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25 percent of any past-due benefits awarded by the Commissioner. Pursuant to the parties’

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stipulation, the matter was remanded to the Commissioner for further proceedings. On February

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26, 2018, pursuant to the stipulation of the parties, plaintiff was awarded $6,000.00 in attorney’s

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fees under the EAJA, payable to plaintiff less any offsets to be determined by the government.1

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On remand to the agency, the Commissioner granted plaintiff’s application for disability benefits

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and awarded $63,037.00 in past-due benefits.

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II. DISCUSSION
Under the Social Security Act, “[w]henever a court renders a judgment favorable

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to a claimant under this 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 representation, not in

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excess of 25 percent of the total past-due benefits to which the claimant is entitled by reason of

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such judgment. . . .” 42 U.S.C. § 406(b)(1)(A). No other fee may be payable or certified for such

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representation except as allowed in this provision. See id.
A remand constitutes a “favorable judgment” under § 406(b). See Shalala v.

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Schaefer, 509 U.S. 292, 300-01 (1993). While the Ninth Circuit has not directly addressed the

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issue, all other circuits to address the issue have concluded that the district court is authorized to

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award fees under § 406(b) when it remands for further proceedings and, following remand, the

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claimant is awarded past-due benefits. See Garcia v. Astrue, 500 F. Supp. 2d 1239, 1243 (C.D.

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Cal. 2007). Limiting § 406(b) awards to cases in which the district court itself awards past-due

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benefits would discourage counsel from requesting a remand where it is appropriate. See Bergen

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v. Comm’r of Soc. Sec., 454 F.3d 1273, 1277 (11th Cir. 2006).

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The court is unaware of any offset to the EAJA award.
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The 25 percent statutory maximum fee is not an automatic entitlement, and the

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court must ensure that the fee actually requested is reasonable. See Gisbrecht v. Barnhart, 535

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U.S. 789, 808-09 (2002). “Within the 25 percent boundary . . . the attorney for the successful

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claimant must show that the fee sought is reasonable for the services rendered.” Id. at 807. “In

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determining the reasonableness of fees sought, the district court must respect ‘the primacy of

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lawful attorney-client fee arrangements,’ ‘looking first to the contingent-fee agreement, then

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testing it for reasonableness.’” Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (quoting

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Gisbrecht, 535 U.S. at 793 and 808).

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The Supreme Court has identified five factors that may be considered in

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determining whether a fee award under a contingent-fee agreement is unreasonable and therefore

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subject to reduction by the court. See Crawford, 586 F.3d at 1151-52 (citing Gisbrecht, 535 U.S.

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at 808). Those factors are: (1) the character of the representation; (2) the results achieved by the

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representative; (3) whether the attorney engaged in dilatory conduct in order to increase the

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accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the

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amount of time counsel spent on the case; and (5) the attorney’s record of hours worked and

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counsel’s regular hourly billing charge for non-contingent cases. See id.
Finally, an award of fees under § 406(b) is offset by any prior award of attorney’s

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fees granted under the Equal Access to Justice Act (EAJA). See Gisbrecht, 535 U.S. at 796.
In this case, having considered the factors above, the court finds that plaintiff’s

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counsel’s request is reasonable given the fee agreement with plaintiff, the results achieved, and

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the lack of any evidence of dilatory conduct designed to increase past-due benefits. In particular,

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the court notes that plaintiff’s counsel seeks less than 25 percent of the total award of past-due

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benefits and, as such, represents a discount to plaintiff.

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III. CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1.

Plaintiff’s counsel’s petition (ECF Nos. 23 and 27) is granted and counsel

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is awarded fees pursuant to 42 U.S.C. § 406(b) in the amount of $12,073.75, paid to counsel by

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the Commissioner out of past-due benefits awarded to plaintiff to the extent such benefits have

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not already been paid to plaintiff; and

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2.

Counsel shall reimburse to plaintiff $6,000.00 previously paid under the

EAJA.

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Dated: January 10, 2020
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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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