Rodriguez v. Commissioner of Social Security

Filing 25

ORDER GRANTING PLAINTIFF'S COUNSEL'S MOTION FOR ATTORNEY'S FEES, 21 . Plaintiff's counsel is ordered to refund to Plaintiff $4,717.80 of the section 406(b) fees awarded as an offset for the EAJA fees previously awarded pursuant to 28 U.S.C. § 2412(d). Order signed by Magistrate Judge Sheila K. Oberto on 4/3/2018. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:15-cv-00384-SKO

ADINA SHANNON RODRIGUEZ,
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Plaintiff,

ORDER GRANTING PLAINTIFF’S
COUNSEL’S MOTION FOR
ATTORNEY’S FEES PURSUANT TO
42 U.S.C. § 406(b)

v.
NANCY A. BERRYHILL,
Acting Commissioner of Social Security,
Defendant.

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(Doc. 21)

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I.

INTRODUCTION

On February 28, 2018, counsel for Plaintiff Adina Shannon Rodriguez (“Plaintiff”),
Lawrence D. Rohlfing, Esq., filed a motion for an award of attorney’s fees pursuant to 42 U.S.C. §
406(b) (the “Motion”). (Doc. 21.) On February 28, 2018, the Court issued a minute order
requiring Plaintiff and Defendant to file their objections to the Motion, if any, by no later than
March 30, 2018. (Doc. 22.) Plaintiff was served with copies of the Motion and the minute order.
(Doc. 23.) On March 30, 2018, the Commissioner filed a statement taking no position as to the
reasonableness of the fee request (Doc. 24); Plaintiff did not file any objection to the motion.
For the reasons set forth below, the motion for an award of attorney’s fees is GRANTED
in the amount of $11,100.00, subject to an offset of $4,717.80 in fees already awarded pursuant to
the Equal Access to Justice Act (“EAJA”) on March 15, 2016 (see Doc. 19).
II.

BACKGROUND

Plaintiff brought the underlying action seeking judicial review of a final administrative
decision denying her claim for disability insurance benefits and supplemental security income

1 under the Social Security Act. (Doc. 1.) On December 28, 2015, upon stipulation by the parties,
2 the Court ordered the case remanded to the agency for further proceedings. (Doc. 16.) On
3 December 30, 2015, judgment was entered in accordance with the Court’s order. (Doc. 17.) On
4 remand, the Commissioner awarded benefits to Plaintiff. (Doc. 21 at 3.) On February 28, 2018,
5 the parties stipulated to an award of $4,717.80 in attorney fees under EAJA (Doc. 19), and on
6 March 15, 2018, the Court entered the stipulated order (Doc. 19).
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On February 20, 2018, the Commissioner issued a notice that retroactive disability benefits

8 had been awarded to Plaintiff and that $11,103.50, representing 25% of Plaintiff’s past-due
9 benefits, had been withheld from Plaintiff’s award of disability benefits for payment of any
10 applicable attorney’s fees. (Doc. 21-2.) On February 28, 2018, counsel filed a motion for
11 attorney’s fees in the amount of $11,100.00, with an offset of $4,717.80 for EAJA fees already
12 awarded. (See Doc. 21 at 6.) It is counsel’s section 406(b) motion for attorney’s fees that is
13 currently pending before the Court.
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III.

DISCUSSION

Pursuant to the Social Security Act, attorneys may seek a reasonable fee for cases in which

16 they have successfully represented social security claimants.

Section 406(b) provides the

17 following:
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Whenever a court renders a judgment favorable to a claimant under this subchapter
who was represented before the court by an attorney, the court may determine and
allow as part of its judgment a reasonable fee for such representation, not in excess
of 25 percent of the total of the past-due benefits to which the claimant is entitled
by reason of such judgment, and the Commissioner of Social Security may . . .
certify the amount of such fee for payment to such attorney out of, and not in
addition to, the amount of such past-due benefits . . . .

22 42 U.S.C. § 406(b)(1)(A) (emphasis added). “In contrast to fees awarded under fee-shifting
23 provisions such as 42 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits
24 awarded; the losing party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142,
25 1147 (9th Cir. 2009) (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The
26 Commissioner has standing to challenge the award, despite that the section 406(b) attorney’s fee
27 award is not paid by the government. Craig v. Sec’y Dep’t of Health & Human Servs., 864 F.2d
28 324, 328 (4th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807. The goal of
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1 fee awards under section 406(b) is to provide adequate incentive to represent claimants while
2 ensuring that the usually meager disability benefits received are not greatly depleted. Cotter v.
3 Bowen, 879 F.2d 359, 365 (8th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at
4 807.
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The 25% maximum fee is not an automatic entitlement, and courts are required to ensure

6 that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808-09 (Section 406(b) does not
7 displace contingent-fee agreements within the statutory ceiling; instead, section 406(b) instructs
8 courts to review for reasonableness fees yielded by those agreements). “Within the 25 percent
9 boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable
10 for the services rendered.” Id. at 807; see also Crawford, 586 F.3d at 1148 (holding that section
11 406(b) “does not specify how courts should determine whether a requested fee is reasonable” but
12 “provides only that the fee must not exceed 25% of the past-due benefits awarded”).
Generally, “a district court charged with determining a reasonable fee award under

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14 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee arrangements,’ . . . ‘looking
15 first to the contingent-fee agreement, then testing it for reasonableness.’” Crawford, 586 F.3d at
16 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). The United States Supreme Court has identified
17 several factors that may be considered in determining whether a fee award under a contingent-fee
18 agreement is unreasonable and therefore subject to reduction by the court: (1) the character of the
19 representation; (2) the results achieved by the representative; (3) whether the attorney engaged in
20 dilatory conduct in order to increase the accrued amount of past-due benefits; (4) whether the
21 benefits are large in comparison to the amount of time counsel spent on the case; and (5) the
22 attorney’s record of hours worked and counsel’s regular hourly billing charge for non-contingent
23 cases. Id. (citing Gisbrecht, 535 U.S. at 807-08).
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Here, the fee agreement between Plaintiff and the Law Offices of Lawrence D. Rohlfing,

25 LLP, signed by Plaintiff and counsel1, provides:
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If this matter requires judicial review of any adverse decision of the Social
Security Administration, the fee for successful prosecution of this matter is a

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The agreement is signed by Plaintiff’s former counsel, Vijay J. Patel, who at that time was with the Law Offices of
Lawrence D. Rohlfing.

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separate 25% of the backpay awarded upon reversal of any unfavorable ALJ
decision for work before the court. Attorney shall seek compensation under the
[EAJA] and such amount shall credit to the client for fees otherwise payable for
court work.

3 (Doc. 21-1, Rohlfing Decl. (dated March 1, 2015) (emphasis in original).)
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The Court has considered the character of counsel’s representation of Plaintiff and the

5 good results achieved by counsel, which included an award of benefits. As Plaintiff’s counsel, the
6 Law Offices of Lawrence Rohlfing spent 27.7 hours representing Plaintiff, ultimately gaining a
7 favorable decision in that the case was remanded to the Commissioner, who then awarded benefits
8 to Plaintiff. (Doc. 21-3, Rohlfing Decl. (time sheets accounting for 23 attorney hours and 4.7
9 paralegal hours spent representing Plaintiff before the district court).) There is no indication that a
10 reduction of the award is warranted due to any substandard performance by Plaintiff’s counsel as
11 counsel secured a successful result for Plaintiff. There is also no evidence that counsel engaged in
12 any dilatory conduct resulting in delay.
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Counsel states that his hourly rate is $190.02 and his paralegals’ hourly rates are $137.00,

14 totaling an effective hourly rate of $327.02. (Doc. 21-3, Rohlfing. Decl.) The Ninth Circuit has
15 found similar—and in many cases, higher—effective hourly rates reasonable in social security
16 contingency fee arrangements. See Crawford, 586 F.3d 1142, 1153 (9th Cir.2009) (explaining
17 that the majority opinion found reasonable effective hourly rates equaling $519, $875, and $902)
18 (J. Clifton, concurring in part and dissenting in part); see also Patterson v. Apfel, 99 F. Supp. 2d
19 1212, 1214 & n.2 (C.D. Cal. 2000) (noting that “a survey of several dozen cases in which
20 attorney's fees were awarded in social security cases suggests that the 33.75 hours spent by
21 plaintiff's counsel falls within the approved range,” and collecting cases). Further, the requested
22 attorney’s fees amount of $11,100 does not exceed 25% of the past-due benefits awarded and are
23 not excessive in relation to the past-due award. See generally Ortega v. Comm'r of Soc. Sec., No.
24 1:12–cv–01030–AWI–SAB, 2015 WL 5021646, at *3 (E.D. Cal. Aug. 21, 2015) (granting petition
25 for an award of attorney’s fees pursuant to section 406(b) in the amount of $24,350.00); Thomas v.
26 Colvin, No. 1:11–cv–01291–SKO, 2015 WL 1529331, at *3 (E.D. Cal. Apr. 3, 2015) (granting
27 petition for an award of attorney’s fees pursuant to section 406(b) in the amount of $44,603.50);
28 Boyle v. Colvin, No. 1:12–cv–00954–SMS, 2013 WL 6712552, at *2 (E.D. Cal. Dec. 19, 2013)
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1 (granting petition for an award of attorney’s fees pursuant to section 406(b) in the amount of
2 $20,577.57); Jamieson v. Astrue, No. 1:09-cv-00490-LJO-DLB, WL 587096, at *2 (E.D. Cal. Feb.
3 9, 2011) (recommending an award of attorney’s fees pursuant to section 406(b) in the amount of
4 $34,500.00).
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In making this determination, the Court recognizes the contingent-fee nature of this case

6 and counsel’s assumption of risk in agreeing to represent Plaintiff under such terms. “District
7 courts generally have been deferential to the terms of contingency fee contracts in § 406(b) cases.”
8 Harris v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003). Attorneys who agree to
9 represent claimants pursuant to a contingent fee agreement assume the risk of receiving no
10 compensation for their time and effort if the action does not succeed. Id. Here, Plaintiff's attorneys
11 accepted substantial risk of loss in representing Plaintiff, whose application had already been
12 denied at the administrative level. Plaintiff agreed to the contingent fee. Working efficiently and
13 effectively, the attorneys secured a remand, and ultimately, the award of substantial benefits to
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An award of attorney’s fees pursuant to section 406(b) in the amount of $11,100.00 is,

16 therefore, appropriate. An award of section 406(b) fees, however, must be offset by any prior
17 award of attorney’s fees granted under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796.
18 Plaintiff was previously awarded $4,717.80 in fees pursuant to the EAJA; as such, the fee award
19 will be offset by $4,717.80 for a net award of $6,382.50.
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IV.

CONCLUSION AND ORDER

For the reasons stated above, the Court concludes that the fees sought by Plaintiff’s

22 counsel pursuant to section 406(b) are reasonable. Accordingly, IT IS ORDERED that:
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1.

Plaintiff's counsel’s motion for an award of attorney’s fees pursuant to 42 U.S.C. §

24 406(b) in the amount of $11,100.00 is GRANTED;
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2.

Plaintiff's counsel is ordered to refund to Plaintiff $4,717.80 of the section 406(b)

2 fees awarded as an offset for the EAJA fees previously awarded pursuant to 28 U.S.C. § 2412(d).
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IT IS SO ORDERED.

5 Dated:
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April 3, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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