Ingrid Quinonez Rodenas v. Michael J Astrue
Filing
23
MEMORANDUM AND ORDER GRANTING PLAINTIFFS MOTION FOR ATTORNEY FEES Pursuant to 42 USC 406(b) 20 by Magistrate Judge Sheri Pym: (see document image for further details). Based upon the foregoing considerations, the court GRANTS the Motion for Attor ney Fees Pursuant to 42 U.S.C. § 406(b). Accordingly, IT IS ORDERED: (1) the Commissioner shall pay fees in the amount of $16,000.00 to the Law Offices of Lawrence D. Rohlfing out of the sum withheld by the Commissioner from plaintiffs benefits; and (2) the Law Offices of Lawrence D. Rohlfing shall reimburse $4,500.00 to plaintiff. IT IS SO ORDERED. (ad)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
12
13
14
15
16
17
INGRID QUINONEZ
RODENAS,
)
)
)
Plaintiff,
)
)
v.
)
)
CAROLYN W. COLVIN, Acting )
Commissioner of Social Security, )
)
Defendant.
)
)
Case No. CV 11-8289-SP
MEMORANDUM AND ORDER
GRANTING PLAINTIFF’S MOTION
FOR ATTORNEY FEES PURSUANT
TO 42 U.S.C. § 406(b)
18
19
Plaintiff’s counsel, Lawrence D. Rohlfing of the Law Offices of Lawrence
20 D. Rohlfing, has filed a Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b)
21 (“406(b) Motion”). Plaintiff’s counsel seeks an award of fees of $16,000 from a
22 recovery of $84,812 in retroactive benefits for plaintiff. For the reasons set forth
23 below, the court grants the 406(b) Motion for fees in this amount.
24
I.
25
BACKGROUND
26
Plaintiff Ingrid Quinonez Rodenas filed a complaint in this court on October
27 5, 2011, seeking a review of a denial of disability insurance benefits. On August
28 29, 2012, following the parties’ full briefing of the issues in dispute, the court
1
1 reversed the decision of the Commissioner of Social Security and remanded the
2 matter to the Commissioner for further administrative proceedings pursuant to
3 sentence four of 42 U.S.C. § 405(g). On October 29, 2012, based on the parties’
4 stipulation for the award of fees under the Equal Access to Justice Act (“EAJA”),
5 the court awarded plaintiff’s counsel fees and expenses in the amount of $4,500,
6 and costs in the amount of $410.
7
Upon remand to the Commissioner, on December 26, 2012, the
8 Administrative Law Judge (“ALJ”) found plaintiff has been under a disability
9 since March 16, 2009. See 406(b) Mtn., Ex. 2. On March 25, 2013, the Social
10 Security Administration (“SSA”) notified plaintiff that she was due monthly
11 benefits beginning in September 2009 in amounts ranging from $2,095.20 to
12 $2,207.50. 406(b) Mtn., Ex. 3. This amounts to past due benefits totaling
13 $84,812.00. See 406(b) Mtn., Rohlfing Decl. ¶ 4, Ex. 3. Of this, SSA withheld
14 “25 percent of past due benefits,” that is, “$21,203.00 from [plaintiff’s] past due
15 benefits in case [SSA] need[s] to pay [plaintiff’s] lawyer.” 406(b) Mtn., Ex. 3 at 2.
16
On March 29, 2013, plaintiff’s counsel Lawrence Rohlfing filed a Motion
17 for Attorney Fees pursuant to 42 U.S.C. § 406(b). Counsel Rohlfing seeks an
18 award of § 406(b) fees in the amount of $16,000.00, subject to an offset for the
19 $4,500.00 in EAJA fees previously paid. Counsel states he will also seek fees of
20 $8,000 under 42 U.S.C. § 406(a), but that the total of all fees sought will not
21 exceed the $21,203 withholding in this case. See 406(b) Mtn., Rohlfing Decl., ¶ 6.
22
The 406(b) Motion is supported by a Declaration of Lawrence Rohlfing and
23 various exhibits. Included among these is an agreement between plaintiff and the
24 Law Offices of Lawrence D. Rohlfing dated February 24, 2010, in which plaintiff
25 agreed to pay a fee for a successful prosecution of “25% of the backpay awarded
26 upon reversal of any unfavorable ALJ decision for work before the court . . .
27 subject to approval by the court with jurisdiction.” 406(b) Mtn., Ex. 1, ¶ 4.
28
Also included is a summary of the time spent by attorney Rohlfing, law
2
1 clerk Vijay Patel, and two paralegals on work before this court through remand to
2 the Commissioner. 406(b) Mtn., Rohlfing Decl., ¶ 5, Ex. 4. It shows they spent a
3 total of 34.2 hours of attorney and paralegal time representing plaintiff in this
4 court. Id.
5
The 406(b) Motion was served on plaintiff, and explicitly advised plaintiff
6 of her right to file a response to the Motion within fourteen days. 406(b) Mtn. at
7 2. Plaintiff did not file a response. Defendant, the Commissioner, did file a
8 response to the 406(b) Motion. Defendant takes no position on the reasonableness
9 of the fee request, but advised the court regarding certain legal and other
10 considerations appropriate to its analysis. Counsel Rohlfing filed a reply in
11 support of the 406(b) Motion.
12
II.
13
DISCUSSION
14 A.
Fees Available to Attorneys Who Successfully Represent Social Security
15
Benefit Claimants in Court
16
An attorney who successfully represents a Social Security benefits claimant
17 in court may be awarded as part of the judgment “a reasonable fee . . . not in
18 excess of 25 percent of the total of the past-due benefits” awarded to the claimant.
19 42 U.S.C. § 406(b)(1)(A). The fee is payable “out of, and not in addition to, the
20 amount of such past-due benefits.” Id. Because benefits amounts figuring in the
21 fee calculation are limited to those past due, attorneys may not obtain additional
22 fees based on a claimant’s continuing entitlement to benefits.
23
Fee awards may be made under the Equal Access to Justice Act as well as
24 42 U.S.C. § 406(b), and such was the case here. As noted above, plaintiff was
25 previously awarded EAJA fees in the total amount of $4,500 for services rendered
26 by counsel in securing the remand of plaintiff’s case. An EAJA award, however,
27 offsets an award under § 406(b) so that the total of the past due benefits actually
28 received by the claimant is increased by the amount of the EAJA award up to the
3
1 point where the claimant could potentially obtain one hundred percent of past-due
2 benefits. Gisbrecht v. Barnhart, 535 U.S. 789, 796, 122 S. Ct. 1817, 152 L. Ed. 2d
3 996 (2002) (citation omitted).
4
In Gisbrecht, the Supreme Court resolved a circuit split concerning the
5 appropriate method of calculating fees under § 406(b). Id. at 799. Several
6 circuits, including the Ninth Circuit, had followed the “lodestar” method, under
7 which the number of hours reasonably devoted to each case was multiplied by a
8 reasonable hourly rate. Id. (citations omitted). Other circuits had given effect to
9 an attorney-client contingent-fee agreement if the resulting fee was reasonable. Id.
10 (citations omitted).
11
The Supreme Court evaluated the two approaches and concluded that
12 § 406(b) (which limits attorney’s fees to twenty-five percent of past-due benefits)
13 was designed to control, and not displace, contingent fee agreements that are
14 within the statutory ceiling. Id. at 807-09. The Court held that § 406(b) “calls for
15 court review of such arrangements as an independent check, to assure that they
16 yield reasonable results in particular cases.” Id. at 807. In rejecting the lodestar
17 approach, the Court noted that, while the lodestar method was used in federal18 court adjudication of disputes over the amount of fees properly shifted to the loser
19 in litigation, fee-shifting to a losing party was not relevant in § 406(b) cases. Id.
20 at 802. As the Court observed, § 406(b) does not authorize the prevailing party to
21 recover fees from the losing party; rather, it authorizes fees payable from the
22 successful party’s recovery. Id.
23
In testing the reasonableness of fees yielded by contingency fee agreements
24 within § 406(b)’s twenty-five percent ceiling, Gisbrecht provided some guidance
25 by identifying the following examples of factors or circumstances that may
26 warrant a reduction: (1) the result achieved; (2) “substandard” representation by
27 counsel; (3) delay by counsel (justifying a reduction to prevent counsel from
28 profiting from the accumulation of benefits while the case is pending due to any
4
1 foot-dragging); (4) “if the benefits are large in comparison to the amount of time
2 counsel spent on the case” thereby resulting in a windfall; and (5) counsel’s record
3 of the hours spent representing the claimant and counsel’s normal hourly billing
4 rate for non-contingency work. Id. at 808; see also Ellick v. Barnhart, 445 F.
5 Supp. 2d 1166, 1168-72 (C.D. Cal. 2006) (providing a thorough analysis of post6 Gisbrecht case law and factors considered by various courts).
7
In Crawford v. Astrue, 586 F.3d 1142 (9th Cir. 2009), the Ninth Circuit
8 examined the teachings of Gisbrecht as applied to three cases consolidated on
9 appeal, and provided some additional guidance as to how courts in this circuit are
10 to properly conduct that analysis. The court emphasized that, under Gisbrecht, the
11 district court “must respect ‘the primacy of lawful attorney-client fee agreements,’
12 ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’”
13 Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). After first
14 looking to the fee agreement, the court may “then adjust downward if the attorney
15 provided substandard representation or delayed the case, or if the requested fee
16 would result in a windfall.” Id. at 1151 (citing Gisbrecht, 535 U.S. at 808). The
17 court may “consider the lodestar calculation, but only as an aid in assessing the
18 reasonableness of the fee.” Id. (citing Gisbrecht, 535 U.S. at 808). The Ninth
19 Circuit particularly noted that “[t]he lodestar method under-compensates attorneys
20 for the risk they assume in representing SSDI claimants and ordinarily produces
21 remarkably smaller fees than would be produced by starting with the contingent22 fee agreement.” Id. at 1149.
23 B.
The Reasonableness of the Fees Sought Here
24
As prescribed by Gisbrecht and Crawford, the court here begins with the
25 mutually executed contingency fee agreement between plaintiff and counsel’s law
26 firm. See 406(b) Mtn., Ex. 1. Plaintiff agreed to pay counsel attorney fees not
27 exceeding twenty-five percent of the back benefits awarded for work before the
28 court – the statutory maximum. Id. As discussed above, SSA ultimately awarded
5
1 plaintiff past due benefits totaling $84,812. Consequently, under the terms of the
2 fee agreement, plaintiff is contractually obligated to pay counsel total attorney fees
3 of $21,203 ($84,812 x .25), “subject to approval by the court.” See id. The record
4 does not indicate that the fee agreement was the product of any fraud, coercion, or
5 overreaching.
6
But plaintiff’s counsel here is not seeking fees of $21,203. Instead,
7 plaintiff’s counsel is seeking fees of $16,000 – equal to some 18.9 percent of the
8 benefits awarded. Plaintiff has not contested this amount sought. Defendant has
9 not taken a position on this amount, but has offered some critical analysis. The
10 court will therefore test this fee amount for reasonableness, considering the
11 analysis offered by defendant in the process.
12
Plaintiff’s counsel here achieved an outstanding result for plaintiff, and did
13 so efficiently and effectively. For example, plaintiff raised just two issues, and the
14 court found the ALJ erred as to both. Further, there was no unreasonable delay by
15 plaintiff’s counsel. Thus, the only question is whether the fees sought would
16 result in a windfall to plaintiff’s counsel.
17
Doing a version of the lodestar check, counsel here seeks $16,000 in fees
18 for 6.3 hours of attorney work, 24.1 hours of law clerk work, and 3.8 hours of
19 paralegal work. Based on the dates and descriptions provided for the work done
20 by counsel Rohlfing in March and May 2011, however, it does not appear that that
21 work should properly be considered work done on this district court case. See
22 406(b) Mtn., Ex. 4. Accordingly, the court reduces the attorney hours in question
23 to 4.8. The court also notes there appears to be a mathematical error in the total of
24 paralegal hours (see id.), and so increases the paralegal hours in question to 4.0.
25 Thus, the total combined attorney, law clerk, and paralegal hours in question 32.9.
26
Of the 32.9 hours, only 4.8 – about 15 percent – are attorney hours. This is
27 lower than usual, and should be taken into account in assessing the reasonableness
28 of the fees using the lodestar check. Defendant contends the court should value
6
1 the law clerk and paralegal hours at their EAJA hourly rates of $150 and $122.99
2 respectively, which would push the attorney hourly rate (for the 4.8 hours allowed
3 by the court) to more than $2,400. See Def.’s Resp. at 4 n.3. Plaintiff’s counsel
4 objects to this methodology, and the court agrees that it is flawed. Counsel’s own
5 EAJA hourly rate was only $180.59. See 406(b) Mtn., Ex. 4. Defendant offers no
6 reason why the court should consider the law clerk and paralegal hourly rates at
7 only the EAJA rate when doing the lodestar check, but not the attorney hourly
8 rate. Indeed, following this methodology might have the perverse result of
9 encouraging attorneys to perform work that could reasonably be performed by law
10 clerks or paralegals.
11
Further, as plaintiff’s counsel notes, other courts have routinely combined
12 attorney and paralegal time when conducting the lodestar check. See, e.g.,
13 Crawford, 586 F.3d at 1145-46. Doing so here, fees of $16,000 for 32.9 total
14 hours of combined attorney and paralegal work amounts to a de facto hourly rate
15 of $486.32. One way of taking into account that only 15 percent of these hours are
16 attorney time would be to assume the attorney rate is twice that of the law clerk or
17 paralegal rate, and calculate the hourly rates accordingly. Doing so results in a
18 law clerk/paralegal rate of $424.40 (for 28.1 hours) and an attorney rate of
19 $848.81 (for 4.8 hours). These rates are high, but not out of line with the de facto
20 hourly rates in approved fee awards in other, similar cases. For example, in
21 Crawford, the Ninth Circuit approved as reasonable the following fee awards as
22 requested by plaintiffs’ counsel:
23 •
Counsel for Crawford requested and received fees of $21,000 on an
24
$123,891.20 award of past-due benefits (16.95% of the recovery), for 19.5
25
hours of attorney time and 4.5 hours of paralegal time, for a combined de
26
facto hourly rate of $875;
27 •
Counsel for Washington requested and received fees of $11,500 on a
28
$76,041 award of past-due benefits (15.12% of the recovery), for 17.45
7
1
hours of attorney time and 4.7 hours of paralegal time, for a combined de
2
facto hourly rate of $519.19; and
3 •
Counsel for Trejo requested and received fees of $24,000 on a $172,223
4
award of past-due benefits (13.94% of the recovery), for 26.9 hours of
5
attorney time and 2.6 hours of paralegal time, for a combined de facto
6
hourly rate of $813.56.
7 Crawford, 586 F.3d at 1145-46, 1152. Even assuming an $848 de facto attorney
8 hourly rate here, that is less than the rate approved for counsel for Crawford, and
9 is only slightly higher than the rate approved for counsel for Trejo, and those rates
10 included paralegal time. A $424 hourly rate for law clerk and paralegal work is
11 high, but again is less than the rates approved in Crawford.
12
Further, as noted, the fees sought amount to only 18.9 percent of the
13 recovery here, less than counsel could have sought under the contingency fee
14 agreement. As noted by the court in Crawford:
15
[T]he requested fees [in each of the three consolidated cases], which
16
were significantly lower than the fees bargained for in the
17
contingent-fee agreements, were not excessively large in relation to
18
the benefits achieved. In each case, counsel voluntarily evaluated the
19
fees in comparison to the amount of time spent on the case. In each
20
case, counsel voluntarily reduced those fees substantially from the
21
allowable 25%.
22 Id. at 1151-52. The same is true in this case.
23
In addition, counsel has represented he will not seek total fees (including
24 the § 406(a) fees to which he may be entitled) in excess of the $21,203
25 withholding, and to that extent he has voluntarily limited the fees he might have
26 sought. Cf. Clark v. Astrue, 529 F.3d 1211, 1215 (9th Cir. 2008) (holding 42
27 U.S.C. § 406(b) does not limit the total amount of attorney’s fees awarded under
28 both §§ 406(a) and 406(b)). Moreover, the value of this case to plaintiff is
8
1 substantially greater than the $84,812 in past due benefits awarded. In addition to
2 the past-due benefits, plaintiff will receive ongoing monthly benefits payments,
3 which began in April. See 406(b) Mtn., Ex. 3.
4
As with any contingency fee agreement case, the risk of losing plaintiff’s
5 case – and thus the risk that counsel would not be paid at all – was substantial. In
6 light of the substantial risk, and given the work done, results achieved, and other
7 circumstances in this case, the court finds that the fees that counsel seeks here are
8 not unreasonable.
9
III.
10
CONCLUSION
11
Based upon the foregoing considerations, the court GRANTS the Motion
12 for Attorney Fees Pursuant to 42 U.S.C. § 406(b). Accordingly, IT IS ORDERED:
13 (1) the Commissioner shall pay fees in the amount of $16,000.00 to the Law
14 Offices of Lawrence D. Rohlfing out of the sum withheld by the Commissioner
15 from plaintiff’s benefits; and (2) the Law Offices of Lawrence D. Rohlfing shall
16 reimburse $4,500.00 to plaintiff.
17 IT IS SO ORDERED.
18
19
20
21
DATED: April 30, 2013
SHERI PYM
United States Magistrate Judge
22
23
24
25
26
27
28
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?