Mosqueda v. Commissioner of Social Security

Filing 31

ORDER by Judge Kandis A. Westmore granting 28 Motion for Attorney Fees. (kawlc2S, COURT STAFF) (Filed on 3/7/2019)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MARLO L. MOSQUEDA,
Plaintiff,

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ORDER GRANTING MOTION FOR
ATTORNEY'S FEES

v.

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Case No. 15-cv-06082-KAW

Re: Dkt. No. 28

COMMISSIONER OF SOCIAL
SECURITY,

United States District Court
Northern District of California

Defendant.
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Plaintiff Marlo L. Mosqueda brought this action seeking review of a final decision of the

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Commissioner of Social Security ("Commissioner" or "Defendant"). After Plaintiff filed her

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motion for summary judgment, the parties stipulated to remand of the case. (Dkt. Nos. 21, 24.)

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The Commissioner ultimately granted Plaintiff's application for benefits, entitling her to

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$66,068.70 in retroactive benefits. (Mot. for Attorney's Fees at 3, Dkt. No. 28.) Plaintiff's

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counsel, Cyrus Safa, now brings a motion for attorney's fees under 42 U.S.C. § 1383(d)(2)(B),

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seeking an award of $10,000 in fees. (Id. at 1.) The Court deems the matter suitable for

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disposition without hearing pursuant to Civil Local Rule 7-1(b). Having considered the papers

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filed by the parties and the relevant legal authority, the Court GRANTS the motion, for the

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reasons set forth below.

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I.

BACKGROUND

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A.

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Plaintiff applied for Title II and Title XVI Disability Insurance Benefits ("DIB"). (Compl.

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¶ 3, Dkt. No. 1.) The Social Security Administration ("SSA") denied her application, and Plaintiff

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requested a hearing before an Administrative Law Judge ("ALJ"). (Compl. ¶¶ 6-7.) The ALJ

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issued an unfavorable decision, and the Appeals Council denied Plaintiff's request for review.

Factual background

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(Compl. ¶¶ 7-8.)
On January 28, 2015, Plaintiff commenced this action for judicial review pursuant to 42

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U.S.C. § 405(g). (Compl. ¶ 3.) On August 26, 2016, Plaintiff filed her motion for summary

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judgment. (Dkt. No. 21.) On September 23, 2016, the parties stipulated to remand for further

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proceedings, and remand was granted on September 27, 2016. (Dkt. Nos. 23, 24.)

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On November 29, 2016, the parties stipulated to the payment of attorney's fees and costs

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under the Equal Access to Justice Act ("EAJA") in the amount of $3,500. (Dkt. No. 26.) The

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$3,500 has been received by counsel. (Mot. for Attorney's Fees at 3.)

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On January 31, 2019, Plaintiff's counsel filed the instant motion for attorney's fees, seeking
$10,000 less the EAJA fee previously awarded, for a total of $6,500. (Mot. for Attorney's Fees at

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United States District Court
Northern District of California

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3.) Plaintiff's request is based on a contingent fee agreement with Plaintiff that permits Plaintiff's

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counsel to seek 25% of past-due benefits for work performed before the SSA and the courts.

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(Plf.'s Mot. at 4; see also Safa Decl., Exh. 1, Dkt. No. 28-1.) The Commissioner filed a response

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on February 14, 2019, taking no position on the reasonableness of the request. (Def.'s Resp. at 1,

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Dkt. No. 29.) No reply was filed, nor was an opposition received from Plaintiff.

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II.

LEGAL STANDARD

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42 U.S.C. § 1383(d) governs the payment of representative fees for Supplemental Security

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Income benefits. These regulations track those for the award of attorney's fees under 42 U.S.C. §

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406. 42 U.S.C. § 1383(d)(2)(A) ("The provisions of section 206 [42 U.S.C. § 406] . . . shall apply

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to this part").

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42 U.S.C. § 406(b) governs fees for the representation of a claimant before the court,

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which is not to exceed "25 percent of the total of the past-due benefits to which the claimant is

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entitled by reason of such judgment . . . ." 42 U.S.C. § 406(b)(1)(A). When reviewing a motion

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for attorney's fees, the Court begins its analysis "by looking first to the contingent-fee agreement,

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then testing it for reasonableness." Gisbrecht v. Barnhart, 535 U.S. 789, 808 (2002). In assessing

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the reasonableness of the fee agreement, the Court considers "'the character of the representation

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and the results the representative achieved.'" Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir.

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2009) (quoting Gisbrecht, 535 U.S. at 808). Thus, the Court may apply a downward adjustment in
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the event of "substandard performance, delay, or benefits that are not in proportion to the time

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spent on the case." Id. While the Court is not to start with a lodestar analysis, it may use the

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lodestar analysis as an aid (but not a baseline) to assess the reasonableness of the fee. Id.

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III.

DISCUSSION

Plaintiff signed a contingent fee agreement that allowed Plaintiff's counsel to recover "a

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fee no greater than 25% of the past-due benefits owed" for representation before both the

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administration and the courts. (Safa Decl., Exh. 1.) Plaintiff's counsel seeks $10,000, or 15.14%

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of the $66,068.70 awarded to Plaintiff in past-due benefits. (Mot. for Attorney's Fees at 5.)

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The Court finds that the amount sought by Plaintiff's counsel is reasonable. First, the
results obtained by Plaintiff's counsel were good, as Plaintiff's motion for summary judgment was

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United States District Court
Northern District of California

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followed by a stipulation for remand. (Dkt. Nos. 21, 23.) On remand, the Commissioner granted

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Plaintiff Title XVI benefits. (Mot. for Attorney's Fees at 3.) Second, the record reveals no undue

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delay or substandard performance that would warrant a downward adjustment. No extensions

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were requested, and the case was resolved in less than a year. Third, the amount sought is

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consistent with the cap set by Congress in § 406(b), and is not disproportionate to the time spent

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by Plaintiff's counsel in this action. Plaintiff's counsel spent 20.8 hours on this case, representing

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an effective rate of $480.77/hour. (See Safa Decl., Exh. 4.) This rate is comparable with rates

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awarded by other courts in this district. Compare with Lopez v. Astrue, Case No. 07-2649-PJH,

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2011 WL 196885, at *4 (N.D. Cal. Jan. 20, 2011) (finding reasonable a $14,778 award for 33.45

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hours of attorney work, an effective rate of $441.79/hour); Goodbar v. Colvin, Case No. 11-cv-

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4572-SI, 2015 WL 6674548, at *1 (N.D. Cal. Nov. 2, 2015) (awarding effective hourly rate of

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$772.09).

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The Court will also deduct the EAJA award from the $10,000 sought by Plaintiff's counsel.

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In general, the Court must offset the § 406(b) attorney's fee award by any EAJA fee award.

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Gisbrecht, 535 U.S. at 796. This was to "'prevent attorneys from receiving double recovery under

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both the EAJA and § 406(b).'" Boissiere v. Astrue, No. C-09-02081 JCS, 2011 WL 1045170, at

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*4 (N.D. Cal. Mar. 22, 2011) (quoting Jackson v. Comm'r of Soc. Sec., 601 F.3d 1268, 1272 (11th

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Cir. 2010)). Here, Plaintiff's counsel received the $3,500 in attorney's fees under the EAJA.
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(Mot. for Attorney's Fees at 3.)

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IV.

CONCLUSION

For the reasons stated above, the motion is GRANTED. The Court awards fees in the
amount of $10,000 less the EAJA fee of $3,500, for a total of $6,500.
IT IS SO ORDERED.
Dated: March 7, 2019
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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United States District Court
Northern District of California

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