(SS) Flores v. Commissioner of Social Security

[8] UNITED STATES DISTRICT COURT [9] EASTERN DISTRICT OF CALIFORNIA [10] 11 CRISTINA Y. FLORES, Case No. 1:20-cv-00888-SAB 12 Plaintiff, ORDER GRANTING COUNSEL’S UNOPPOSED MOTION FOR ATTORNEY 13 v. FEES PURSUANT TO 42 U.S.C. § 406 (b) 14 COMMISSIONER OF SOCIAL (ECF No. 21) SECURITY, [15] Defendant. [16] 17 I. 18 INTRODUCTION 19 Monica Perales of the Law Offices of Lawrence D. Rohlfing, Inc., CPC (“Counsel”), 20 attorney for Cristina Y. Flores (“Plaintiff”), filed the instant motion for attorney fees on 21 December 14, 2022. (Mot. Att’y Fees (“Mot.”), ECF No. 21.) Counsel requests fees in the gross 22 amount of $8,500.00 pursuant to 42 U.S.C. § 406 (b), with an offset of $1,000 for fees previously 23 awarded under the Equal Access to Justice Act, 28 U.S.C. § 2412 (d) (“EAJA”). Plaintiff was 24 served with the motion and advised that any opposition to the motion was to be filed within 25 fourteen days. (Mot. 2; ECF No. 21 at 24.) Plaintiff did not file an opposition to the motion, nor 26 did Defendant. For the reasons discussed herein, Counsel’s unopposed motion for attorney fees 27 shall be granted. / / / 1 II. 2 BACKGROUND 3 On June 23, 2020, Plaintiff filed this action challenging the denial of social security 4 benefits. (ECF No. 1.) On February 25, 2021, pursuant to the parties’ stipulation, this action 5 was closed and remanded for further consideration. (ECF Nos. 16, 17.) Judgment was entered 6 in favor of Plaintiff. (ECF No. 18.) On May 12, 2021, the Court entered a stipulation under the 7 EAJA in the amount of $1,000. (ECF No. 20.) Following remand, a favorable decision was 8 issued awarding approximately $44,962.12 in benefits to Plaintiff. (Mot. 6.) 9 III. 10 LEGAL STANDARD 11 In relevant part, 42 U.S.C. § 406 (b)(1)(A) provides that when a federal court “renders a 12 judgment favorable to a claimant . . . who was represented before the court by an attorney,” the 13 court may allow reasonable attorney fees “not in excess of 25 percent of the total of the past-due 14 benefits to which the claimant is entitled by reason of such judgment.” The payment of such 15 award comes directly from the claimant’s benefits. 42 U.S.C. § 406 (b)(1)(A). 16 The Supreme Court has explained that a district court reviews a petition for section 17 406(b) fees “as an independent check” to assure that the contingency fee agreements between the 18 claimant and the attorney will “yield reasonable results in particular cases.” Gisbrecht v. 19 Barnhart, 535 U.S. 789, 807 (2002). The district court must respect “the primacy of lawful 20 attorney-client fee agreements,” and is to look first at the contingent-fee agreement, and then test 21 it for reasonableness.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (quoting 22 Gisbrecht, 535 U.S. at 793 ). The twenty-five percent maximum fee is not an automatic 23 entitlement, and courts are required to ensure that the requested fee is reasonable. Gisbrecht, 535 24 U.S. at 808–09 (“§ 406(b) does not displace contingent-fee agreements within the statutory 25 ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by those 26 agreements”). Agreements seeking fees in excess of twenty-five percent of the past-due benefits 27 awarded are not enforceable. Gisbrecht, 535 U.S. at 807 . The attorney has the burden of [1] 586 F.3d at 1148 . 2 While the Supreme Court in Gisbrecht did not expressly “provide a definitive list of 3 factors that should be considered in determining whether a fee is reasonable or how those factors 4 should be weighed, the Court directed the lower courts to consider the ‘character of the 5 representation and the results the representative achieved.’ ” Crawford, 586 F.3d at 1151 6 (quoting Gisbrecht, 535 U.S. at 808 ). The Ninth Circuit has stated a court may weigh the 7 following factors under Gisbrecht in determining whether the fee was reasonable: (1) the 8 standard of performance of the attorney in representing the claimant; (2) whether the attorney 9 exhibited dilatory conduct or caused excessive delay which resulted in an undue accumulation of 10 past-due benefits; and (3) whether the requested fees are excessively large in relation to the 11 benefits achieved when taking into consideration the risk assumed in these cases. Crawford, 586 12 F.3d at 1151-52. 13 Ultimately, an award of section 406(b) fees is offset by an award of attorney fees granted 14 under the EAJA. Gisbrecht, 535 U.S. at 796 ; Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 15 1215, 1219 (9th Cir. 2012) (noting “the EAJA savings provision requires an attorney who 16 receives a fee award under § 2412(d) of the EAJA in addition to a fee award under § 406(b) for 17 the ‘same work’ to refund to the Social Security claimant the smaller award.”). 18 IV. 19 DISCUSSION 20 The Court has conducted an independent check to insure the reasonableness of the 21 requested fees in relation to this action. Gisbrecht, 535 U.S. at 807 . Here, the fee agreement 22 between Plaintiff and Counsel provides that: “If this matter requires judicial review of any 23 adverse decision of the Social Security Administration, the fee for successful prosecution of this 24 matter is a separate 25% of the past due benefits awarded upon reversal of any unfavorable 25 ALJ decision for work before the court.” (ECF No. 21-1 at 1 (emphasis in original).) Plaintiff 26 has been awarded retroactive benefits in the amount of $44,962.12. (See Mot. 6; Decl. Monica 27 Perales (“Perales Decl.”) ¶ 4, ECF No. 21 at 21; Ex. 3, ECF No. 25-7.) Counsel proffers it is 1 Consideration of the factors set forth in Gisbrecht and Crawford warrants no reduction of 2 the fee Counsel seeks. There is no indication that a reduction of fees is warranted for 3 substandard performance. Counsel is an experienced, competent attorney who secured a 4 successful result for Plaintiff. There is no indication that Counsel was responsible for any delay 5 in the court proceedings. Counsel was successful in obtaining a stipulation for remand. 6 Plaintiff agreed to a twenty-five percent (25%) fee at the outset of the representation, and 7 in reflecting the standard withholding by the Agency, the Court finds the fee is not excessively 8 large in relation to the retroactive award of $44,962.12. In making this determination, the Court 9 recognizes the contingent nature of this case and the risk that counsel took of going 10 uncompensated. Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). 11 In Crawford the Ninth Circuit found that fees of $519, $875, and $902 per hour, for time 12 of both attorneys and paralegals, was not excessive. Crawford, 486 F.3d at 1153 (Clifton, J., 13 concurring in part). Further, since Gisbrecht, courts note that reducing a fee request should not 14 be routinely done and find fee awards of an effective hourly rate much higher than this to be 15 reasonable. Williams v. Berryhill, No. EDCV 15-919-KK, 2018 WL 6333695 , at *2 (C.D. Cal. 16 Nov. 13, 2018) (awarding fee request that provides an effective hourly rate of $1,553.36 per 17 hour); Coles v. Berryhill, No. EDCV 14-1488-KK, 2018 WL 3104502 , at *3 (C.D. Cal. June 21, 18 2018) (effective hourly rate of $1,431.94 reasonable under the circumstances); Palos v. Colvin, 19 No. CV 15-04261-DTB, 2016 WL 5110243 , at *2 (C.D. Cal. Sept. 20, 2016) (fees sought 20 translate to $1,546.39 per hour for attorney and paralegal services); see also Villa v. Astrue, No. 21 CIVS-06-0846 GGH, 2010 WL 118454 , at *1, n.1 (E.D. Cal. Jan. 7, 2010) (“In practice, the 22 more efficient counsel is in court, the higher will be the hourly fee amount represented in a § 406 23 fee award.”). 24 Counsel did not expend significant time in this matter, proffering a total of 5.8 hours total 25 hours, encompassing 3.0 hours of attorney billing and 2.8 hours of paralegal time. (Perales Decl. 26 ¶ 5; ECF No. 21-4 at 1.) This equates to $1,465.51 per hour for combined paralegal and attorney 27 billing. This is in line with the above cases. Therefore, given the above caselaw and 1 | less than 25%, the Court finds that the requested fees are reasonable, and the representation of 2 claimant resulted in the action being remanded for further proceedings and ultimately, 3 | substantial benefits were awarded. 4 The award of Section 406(b) fees is offset by any prior award of attorney fees granted 5 | under the EAJA. 28 U.S.C. § 2412 ; Gisbrecht, 535 U.S. at 796 . In this instance, Petitioner has 6 | previously been awarded $1,000 in EAJA fees and the award of fees under Section 406(b) shall 7 | be offset in that amount. 8 V. 9 CONCLUSION AND ORDER 10 For the reasons stated above, the Court finds that the fees sought by Counsel pursuant to 11 | Section 406(b) are reasonable. Accordingly, IT IS HEREBY ORDERED that: 12 1. Counsel’s motion for an award of attorney fees pursuant to Section 406(b) in the 13 amount of $8,500.00, (ECF No. 21), is GRANTED; 14 2. The Court authorizes payment to the Law Offices of Lawrence D. Rohlfing, Inc., 15 CPC, in the amount of $8,500.00 representing attorney fees being withheld from 16 Plaintiffs past due disability benefits; and 17 3, Upon receipt of this sum, Counsel shall remit $1,000.00 directly to Plaintiff as an 18 offset for EAJA fees previously awarded pursuant to 28 U.S.C. § 2412 . [19] IT IS SO ORDERED. OF. ee 21 | Dated: _ January 20, 2023 _ OO UNITED STATES MAGISTRATE JUDGE