Connolly v. Commissioner of Social Security

Filing 31

ORDER GRANTING 28 Motion for Attorney Fees signed by Magistrate Judge Barbara A. McAuliffe on 11/4/2019. (Jessen, A)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

CHRISTOPHER THOMAS-TROY
CONNOLLY

12

Plaintiff,

13

v.

14
15

ANDREW M. SAUL,1 Commissioner of
Social Security,

16

)
)
)
)
)
)
)
)
)
)

Case No.: 1:15-cv-00718-BAM
ORDER GRANTING MOTION FOR
ATTORNEYS’ FEES PURSUANT TO 42 U.S.C.
§ 1383(d)(2)(B)
(Doc. No. 28)

Defendant.

17
Pending before the Court is Plaintiff’s counsel’s motion for attorneys’ fees pursuant to 42

18
19
20
21
22
23

U.S.C. §1383(d)(2)(B). (Doc. No. 28). The Commissioner of Social Security (the “Commissioner”)
has filed a statement of non-opposition to the motion. (Doc. No. 30). Having reviewed the motion and
its supporting documentation, as well as the case file, the Court GRANTS the motion and awards
attorneys’ fees in the amount of $12,345.00.
I.

The Law Offices of Lawrence D. Rohlfing entered into a written contingent fee agreement with

24
25
26

Relevant Background

Plaintiff on April 2, 2015, which provided that “[i]n consideration of the services to be performed by
the Attorney and it being the desire of the Claimant to compensate Attorney out of the proceeds . . . the

27
28

1

Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of the Federal Rules of
Civil Procedure, Andrew M. Saul is substituted for Acting Commissioner Nancy A. Berryhill as the defendant in this suit.

1

1

fee for successful prosecution of this matter is . . . 25% of the past due benefits awarded upon reversal

2

of any unfavorable ALJ decision for work before the Social Security Administration.” (Doc. No. 28-1).

3

On May 8, 2015, Plaintiff filed this action seeking judicial review of the Commissioner’s denial

4

of benefits. (Doc. No. 1). On September 16, 2016, the Court issued an order upholding the

5

Commissioner’s decision to deny benefits. (Doc. No. 18.) Plaintiff filed a notice of appeal and, on

6

July 28, 2017, the Ninth Circuit Court of Appeals reversed the Court’s order dated September 16, 2016.

7

(Doc. Nos. 20, 23.) On October 3, 2017, the Court issued an order remanding this action for further

8

administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. No. 25.) On

9

November 15, 2017, the Court approved the parties’ stipulation to award Plaintiff $9,450.00 in

10

attorneys’ fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d). (Doc. No. 27.) On

11

remand, the Commissioner issued a decision to grant Plaintiff’s application for benefits and, on August

12

9, 2019, the Commissioner issued a notice indicating that Plaintiff’s retroactive Title XVI benefits

13

totaled $49,394.3. (Doc. Nos. 28 at 9, 28-3.)

14

In the present Motion, Plaintiff’s counsel asks the Court to find an award of $12,345.00

15

reasonable with a credit of $9,450.00 for the EAJA fees previously paid and direct the Commissioner to

16

certify the fee of $2,895.00 for legal fees incurred in this Court. Plaintiff’s counsel contends this fee is

17

reasonable in light of the services rendered and results achieved, as counsel prepared and participated in

18

obtaining a favorable result and the manner and approach to the case saved time and reduced the

19

accumulation of past-due benefits. (Doc. No. 28 at 4-6.) The fee counsel seeks is twenty-five percent

20

of the past-due benefits payable to Plaintiff. (Id. at 4.) The Commissioner filed a notice of non-

21

opposition noting no objection to the fee request. (Doc. No. 30.)

22

II.

23
24
25
26
27

Legal Standard
An attorney may seek an award of fees for representation of a Social Security claimant who is

awarded benefits:
Whenever a court renders a judgment favorable to a claimant . . . 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. . ..

28
2

1

42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b)

2

controls fees awarded for representation of Social Security claimants); 42 U.S.C. § 1383(d)(2)(A)

3

(incorporating the provisions of section 406). A contingency fee agreement is unenforceable if it

4

provides for fees exceeding twenty-five percent of past-due benefits. Gisbrecht, supra, 535 U.S. at

5

807.

6

III.

Discussion and Analysis
District courts “have been deferential to the terms of contingency fee contracts § 406(b) cases.”

7
8

Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). However, the Court must review

9

contingent-fee arrangements “as an independent check, to assure that they yield reasonable results in

10

particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, the Court should consider “the character of

11

the representation and the results the representative achieved.” Id. at 808. In addition, the Court

12

should consider whether the attorney performed in a substandard manner or engaged in dilatory

13

conduct or excessive delays, and whether the fees are “excessively large in relation to the benefits

14

received.” Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc).
In this case, after carefully considering the fee agreement and the applicable law, the Court

15
16

finds Plaintiff’s counsel’s requested fees to be reasonable. In support of the motion for attorneys’ fees

17

under 42 U.S.C. § 1383(d)(2)(B), Plaintiff’s counsel attached the contingent fee agreement which

18

provided for a contingent fee of twenty-five percent of any awarded retroactive benefits. Plaintiff’s

19

counsel accepted the risk of loss in the representation and expended a total of 53.35 hours while

20

representing Plaintiff before the District Court and the Ninth Circuit Court of Appeals. (Doc. No. 28

21

at 9.) As a result of counsel’s work, the matter was remanded for further proceedings before an

22

Administrative Law Judge, who issued a fully favorable decision and awarded Plaintiff benefits.
Plaintiff’s counsel provided a copy of the notice of award and the motion for attorney’s fees to

23
24

Plaintiff. (Doc. No. 28). Although served with the motion, Plaintiff did not challenge the requested

25

fees which attests to their reasonableness. Likewise, the Commissioner, in its advisory capacity, also

26

declined to dispute the propriety of the amount of the fees requested by Plaintiff’s counsel. (Doc. No.

27

30.)

28

Additionally, there is no indication counsel performed in a substandard manner or engaged in
3

1

severe dilatory conduct to the extent that a reduction in fees is warranted. To the contrary, Plaintiff

2

was able to secure a fully favorable decision and remand for further proceedings, including an award

3

of past-due benefits. Accordingly, the Court finds the fees sought by counsel are reasonable in light

4

the results achieved in this action, and the amount does not exceed twenty-five percent maximum

5

permitted under 42 U.S.C. §§ 406(b) and 1383(b)(2)(A).

6

IV.

Conclusion and Order

7

Based upon the foregoing, IT IS HEREBY ORDERED that:

8

1.

9
10
11
12
13

Plaintiff’s counsel’s motion for attorneys’ fees under 42 U.S.C. §1383(d)(2)(B) (Doc.

No. 28) is GRANTED;
2.

Plaintiff’s counsel is awarded $12,345.00 in attorneys’ fees pursuant to 42 U.S.C. §

1383(d)(2)(B); and
3.

Plaintiff’s counsel shall compensate Plaintiff in the amount of $9,450.00 for fees

previously awarded pursuant to EAJA.

14
15
16
17

IT IS SO ORDERED.
Dated:

/s/ Barbara

November 4, 2019

A. McAuliffe

_

UNITED STATES MAGISTRATE JUDGE

18
19
20
21
22
23
24
25
26
27
28
4