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Aguilar v. Commissioner of Social Security

United States District Court, E.D. California

November 20, 2019



         Petitioner Brian Shapiro (“Counsel”), attorney for Antonio Aguilar (“Plaintiff”), filed the instant motion for attorney fees on November 5, 2019. Counsel requests fees in the net amount of $7, 000.00 pursuant to 42 U.S.C. § 1383(d)(2)(B). Plaintiff was served with the motion and advised that any opposition to the motion was to be filed within fourteen days. Plaintiff did not file a timely opposition to the request. (ECF No. 21 at 2, 11.[1]) On November 19, 2019 the Commissioner of Social Security filed a non-party response to the motion for attorney fees in a role resembling that of trustee for Plaintiff. For the following reasons, Petitioner's motion for attorney fees shall be granted.



         Plaintiff filed the instant complaint challenging the denial of social security benefits on November 2, 2017. (ECF No. 1.) On August 22, 2018, an order issued granting the parties' stipulation for voluntary remand. (ECF No. 18.) The Court entered judgment in Plaintiff's favor and the action was remanded. (Id.)

         On remand, the ALJ found that Plaintiff was disabled as of December 10, 2013, and past benefits were awarded in the amount of $43, 141.20.[2] (ECF No. 21-2 at 6; ECF No. 21-3.) Petitioner has previously received payment of $2, 750.00 in fees under the Equal Access to Justice Act (“EAJA”). (ECF No. 20.) In the instant motion, Petitioner seeks an additional $7, 000.00 for a gross award of $9, 750.00 for work performed in this action.



         An attorney may seek an award of attorney fees for representing a Social Security claimant who is awarded benefits under Title XVI pursuant to 42 U.S.C. § 1383. In relevant part, section 1383 provides:

[I]f the claimant is determined to be entitled to past-due benefits under this subchapter and the person representing the claimant is an attorney, the Commissioner of Social Security shall pay out of such past-due benefits to such attorney an amount equal to the lesser of--
(i) so much of the maximum fee as does not exceed 25 percent of such past-due benefits (as determined before any applicable reduction under subsection (g) and reduced by the amount of any reduction in benefits under this subchapter or subchapter II pursuant to section 1320a-6(a) of this title . . . .

42 U.S.C. § 1383(d)(2)(B). Additionally, with exceptions not relevant here, “[t]he provisions of section 406 of [Title 42] shall apply to this part to the same extent as they apply in the case of subchapter II. . . .” 42 U.S.C. § 1383(d)(1). Therefore, the Court addresses Petitioner's fee request as if it were a request brought under section 406(b).

         The Supreme Court has explained that a district court reviews a petition for section 406(b) fees “as an independent check” to assure that the contingency fee agreements between the claimant and the attorney will “yield reasonable results in particular cases.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful attorney-client fee agreements, ” and is to look first at the contingent-fee agreement, and then test it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009). The twenty-five percent maximum fee is not an automatic entitlement, and courts are required to ensure that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808-09 (“§ 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those agreements”). Agreements seeking fees in excess of twenty-five percent of the past-due benefits awarded are not enforceable. Crawford, 586 F.3d at 1148. The attorney has the burden of demonstrating that the fees requested are reasonable. Gisbrecht, 535 U.S. at 808; Crawford, 586 F.3d at 1148.

         In determining the reasonableness of an award, the district court should consider the character of the representation and the results achieved. Gisbrecht, 535 U.S. at 800. Ultimately, an award of section 406(b) fees is offset by an award of attorney fees granted under the EAJA. Gisbrecht, 535 U.S. at 796.

         The Ninth Circuit has identified several factors that a district court can examine under Gisbrecht in determining whether the fee was reasonable. In determining whether counsel met his burden to demonstrate that the requested fees are reasonable, the court may consider (1) the standard of performance of the attorney in representing the claimant; (2) whether the attorney exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of past-due benefits; and (3) whether the requested fees are ...

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