Gaona v. Berryhill

Filing 32

ORDER by Judge Kandis A. Westmore granting 29 Motion for Attorney Fees. (kawlc2, COURT STAFF) (Filed on 5/19/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SALVADOR RIVAS GAONA,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 17-cv-03364-KAW
ORDER GRANTING MOTION FOR
ATTORNEY'S FEES

v.

Re: Dkt. No. 29

NANCY A. BERRYHILL,
Defendant.

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Plaintiff Salvador Rivas Gaona brought this action seeking review of a final decision of the

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Commissioner of Social Security (“Commissioner” or “Defendant”). Following the Court’s

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remand of the case for further proceedings, the Commissioner granted Plaintiff’s application for

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benefits, entitling him to $209,675.00 in retroactive benefits. (Mot. for Attorney’s Fees at 3, Dkt.

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No. 29; see also Shapiro Decl., Exh. 3 at 3, Dkt. No. 29-3.) Plaintiff’s counsel, Brian C. Shapiro,

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now brings a motion for attorney’s fees under 42 U.S.C. § 1383(d)(2)(B), seeking an award of

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$25,823.75 in fees. (Id.) The Court deems the matter suitable for disposition without hearing

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pursuant to Civil Local Rule 7-1(b). Having considered the papers filed by the parties and the

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relevant legal authority, the Court GRANTS the motion, for the reasons set forth below.

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I.

BACKGROUND

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On January 7, 2010, Plaintiff applied for Title II and Title XVI benefits. (Administrative

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Record (“AR”) 140.) The Social Security Administration (“SSA”) denied Plaintiff’s application,

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and on July 11, 2013, Plaintiff commenced an action for judicial review pursuant to 42 U.S.C. §

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405(g). (Case No. 13-cv-3204-JCS, Dkt. No. 1.) On April 21, 2014, Plaintiff’s motion for

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summary judgment was granted, and the case was remanded for further administrative

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proceedings. (Case No. 13-cv-3204-JCS, Dkt. No. 21.) On June 4, 2014, the parties stipulated to

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the payment of attorney’s fees and costs under the Equal Access to Justice Act (“EAJA”) in the

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amount of $2,000. (Dkt. No. 26.)

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On remand, Plaintiff’s social security application was again denied. (AR 23-33.) On June

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11, 2017, Plaintiff commenced the instant action for judicial review pursuant to 42 U.S.C. §

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405(g). (Compl., Dkt. No. 1.) On March 23, 2018, this Court granted Plaintiff’s motion for

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summary judgment and remanded the case for further proceedings. (Dkt. No. 23 at 9.) On May 3,

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2018, the parties stipulated to the payment of attorney’s fees and costs under the EAJA in the

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amount of $3,000. (Dkt. No. 26.) The $3,000 has been received by counsel, in addition to $2,000

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from the prior case. (Mot. for Attorney’s Fees at 3.)
On March 31, 2020, Plaintiff’s counsel filed the instant motion for attorney’s fees, seeking

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United States District Court
Northern District of California

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$25,823.75 less the EAJA fee previously awarded, for a total of $20,823.75. (Mot. for Attorney’s

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Fees at 3.) Plaintiff’s counsel’s request is based on a contingent fee agreement with Plaintiff that

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permits Plaintiff’s counsel to seek 25% of past-due benefits for work performed before the courts.

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(Id.; see also Shapiro Decl., Exh. 1, Dkt. No. 29-1.) The Commissioner filed a response on April

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3, 2020, taking no position on the reasonableness of the request. (Def.’s Resp. at 2, Dkt. No. 31.)

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No reply was filed, nor were any objections received from individual 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

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Plaintiff signed a contingent fee agreement that allowed Plaintiff's counsel to recover “25%

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of the backpay awarded upon reversal of any unfavorable ALJ decision for work before the court.”

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(Shapiro Decl., Exh. 1.) Plaintiff’s counsel seeks $25,823.75, or 12.5% of the $209,675.00

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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

United States District Court
Northern District of California

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results obtained by Plaintiff’s counsel were good, as Plaintiff’s counsel twice successfully

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obtained orders remanding the case for further proceedings. (Dkt. No. 23; see also Case No. 13-

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cv-3204-JCS, Dkt. No. 21.) Second, the record reveals no undue delay or substandard

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performance that would warrant a downward adjustment. Plaintiff sought only one 35-day

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extension in the instant case, and no extensions in the prior case. (See Dkt. No. 20.)

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Third, the amount sought is consistent with the cap set by Congress in § 406(b) and is not

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disproportionate to the time spent by Plaintiff’s counsel in this action. Plaintiff’s counsel spent

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22.1 hours on these cases (8.2 hours in the prior case and 13.9 hours in the current case), and his

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paralegal spent an additional 7.2 hours on these cases (3.7 hours in the prior case and 3.5 hours in

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the current case). (Shapiro Decl., Exh. 4, Dkt. No. 29-4.) Considering only the time spent by

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Plaintiff’s counsel, Plaintiff’s counsel seeks an effective rate of $1,168.50.

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While very high, this rate is comparable with rates awarded by other courts in this district.

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Compare with Dreesman v. Saul, Case No. 16-cv-2549-HRL (HSG), 2019 U.S. Dist. LEXIS

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167278, at *4-5 (N.D. Cal. Sept. 27, 2019) (finding reasonable a $23,439.63 award for 22.65

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hours of attorney work and 3 hours of paralegal work, an effective rate of $1,034.86); Heath v.

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Berryhill, Case No. 15-cv-1811-EDL, 2017 U.S. Dist. LEXIS 221883, at *7-8 (N.D. Cal. Aug. 28,

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2017) (approving effective rate of $1,244.65); Harrell v. Berryhill, Case No. 16-cv-2428-TSH,

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2018 U.S. Dist. LEXIS 163460, at *12 (N.D. Cal. Sept. 24, 2018) (finding reasonable an effective
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rate of $1,213.83); see also Crawford, 586 F.3d at 1153 (affirming reasonableness of effectively

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hourly rates of $519, $875, and $902). Further, while this rate is high, the Ninth Circuit has

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recognized that in assessing reasonableness, the court should not start with the lodestar method

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because “the lodestar method tends to under-compensate attorneys for the risk they undertook in

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representing their clients and does not account for the fact that the statute limits attorneys’ fees to

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a percentage of past-due benefits and allows no recovery from future benefits,, which may far

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exceed the past-due benefits awarded.” Crawford, 586 F.3d at 1150. Here, Plaintiff’s counsel

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took on significant risk of non-payment since 2013, representing Plaintiff in two court proceedings

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challenging the denial of Plaintiff’s social security benefits. While the case involves
approximately ten years of backpay, as discussed above, there is no indication that Plaintiff’s

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United States District Court
Northern District of California

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counsel was responsible for the delay. Thus, considering the three Crawford factors, the Court

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finds that the amount sought by Plaintiff’s counsel is reasonable.

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The Court will also deduct the EAJA award from the $25,823.75 sought by Plaintiff’s

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

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award. Gisbrecht, 535 U.S. at 796. This is to “‘prevent attorneys from receiving double recovery

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under both the EAJA and § 406(b).’” Boissiere v. Astrue, No. C-09-02081 JCS, 2011 WL

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1045170, at *4 (N.D. Cal. Mar. 22, 2011) (quoting Jackson v. Comm’r of Soc. Sec., 601 F.3d

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1268, 1272 (11th Cir. 2010)). Here, Plaintiff’s counsel received the $5,000 in attorney’s fees

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under the EAJA. (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 $25,823.75 less the EAJA fee of $5,000, for a total of $20,823.75.
IT IS SO ORDERED.
Dated: May 19, 2020
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge

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