Wallis v. Commissioner of Social Security

Filing 24

ORDER GRANTING 21 Motion for Attorney Fees signed by Magistrate Judge Jennifer L. Thurston on 10/11/2019. (Apodaca, P)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARCY MARIE DADIAN WALLIS,

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Plaintiff,
v.

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ANDREW M. SAUL1,
Commissioner of Social Security,

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Defendant.

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Case No.: 1:15-cv-01670- JLT
ORDER GRANTING COUNSEL’S MOTION
FOR ATTORNEY FEES PURSUANT TO
42 U.S.C. § 406(b)
(Doc. 21)

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Brian Shapiro, counsel for Plaintiff Marcy Marie Dadian Wallis, seeks an award of attorney fees

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pursuant to 42 U.S.C. § 406(b). (Doc. 21) Neither Plaintiff nor the Commissioner of Social Security

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oppose the motion.2 For the following reasons, the motion for attorney fees is GRANTED.

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I.

Relevant Background

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Plaintiff entered into a contingent fee agreement with the Law Offices of Lawrence D. Rohlfing

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on October 16, 2015. (Doc. 21-1) The agreement entitled counsel to an award of “25% of the backpay

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awarded” if judicial review of an administrative decision was required, and the adverse decision of an

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ALJ was reversed. (Id. at 1) The agreement also required counsel to “seek compensation under the

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Equal Access to Justice Act,” and the amount awarded would be credited to Plaintiff “for fees

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This action was originally brought against Carolyn W. Colvin in her capacity as then-Acting Commissioner.
Andrew M. Saul, the newly-appointed Commissioner, has been automatically substituted as the defendant in this action.
See Fed. R. Civ. P. 25(d).
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The Commissioner filed a response to the motion, in which he offered an “analysis of the requested fees” but
asserted he was “not in a position to either assent to or object to the §406(b) fees that Counsel seeks.” (Doc. 23 at 2)

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otherwise payable for court work.” (Id.)

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On October 30, 2015, Plaintiff filed a complaint for review of the administrative decision

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denying her application for Social Security benefits. (Doc. 1) The Court found the ALJ failed to

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identify legally sufficient reasons to support the adverse credibility determination and remanded the

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matter for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 17 at 10-15)

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Following the entry of judgment in favor of Plaintiff (Doc. 18), the Court awarded $3,900 in attorney

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fees pursuant to the Equal Access to Justice Act. (Doc. 20 at 1)
Upon remand, an ALJ issued a “partially favorable” decision, finding Plaintiff was disabled

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beginning February 4, 2014. (Doc. 21-2 at 1, 23) On April 20, 2019, the Social Security

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Administration concluded Plaintiff was entitled to monthly benefits from Social Security beginning

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August 2014. (Doc. 21-3 at 1) In total, Plaintiff was entitled to $49,116.52 in past-due benefits, out of

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which the Commissioner withheld $12,279.13 for payment of attorney’s fees. (Id. at 2; see also Doc.

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21 at 3)

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Mr. Shapiro filed the motion now before the Court on September 16, 2019, seeking fees in the

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amount of $6,279.00. (Doc. 21) Mr. Shapiro served Plaintiff with the motion and informed her of the

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right to file a response to indicate whether she agreed or disagreed with the requested fees. (Id. at 2, 14)

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Plaintiff has not opposed the motion.

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II.

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Attorney Fees under § 406(b)
An attorney may seek an award of fees for representation of a Social Security claimant who is

awarded benefits:

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Whenever a court renders a judgment favorable to a claimant under [42 USC § 401, et
seq] 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. . . .

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

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controls fees awarded for representation of Social Security claimants).

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A contingency fee agreement is unenforceable if it provides for fees exceeding the statutory

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amount. Gisbrecht, 535 U.S. at 807 (“Congress has provided one boundary line: Agreements are

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unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits.”).
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III.

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

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

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

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

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

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

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excessive delays, and whether the fees are “excessively large in relation to the benefits received.”

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Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc).
Plaintiff entered into the contingent fee agreement in which she agreed to pay twenty-five

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percent of any awarded past-due benefits. The Law Offices of Lawrence D. Rohlfing accepted the risk

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of loss in the representation and expended a total of 23.6 hours while representing Plaintiff before the

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District Court. (Doc. 21 at 3; Doc. 21-4 at 1-2) Due to counsel’s work, the action was remanded

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further proceedings, and Plaintiff received a favorable decision. For this, Mr. Shapiro requests a fee of

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$6,279.00. (Doc. 21 at 3) Because $3,900.00 was previously paid under the EAJA, the net cost to

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Plaintiff is $2,279.00. Finally, though served with the motion and informed of the right to oppose the

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fee request (Doc. 21 at 2, 14), Plaintiff did not file oppose the request and thereby indicates her implicit

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belief that the fee request is reasonable.
Significantly, there is no indication Mr. Shapiro performed in a substandard manner or engaged

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in severe dilatory conduct to the extent that a reduction in fees is warranted. Plaintiff was able to

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secure a remand for payment of benefits following her appeal, including an award of past-due benefits.

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Finally, the fees requested are approximately 13 percent of the past-due benefits, and do not exceed

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twenty-five percent maximum permitted under 42 U.S.C. §406(b), or the amount withheld by the

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administration for payment of fees.

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IV.

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Conclusion and Order
Based upon the tasks completed and results achieved following the remand for further

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proceedings, the Court finds the fees sought by Mr. Cho and the Law Offices of Lawrence D. Rohlfing

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are reasonable. Accordingly, the Court ORDERS:
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$6,279.00 is GRANTED;

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The Commissioner shall pay the amount directly to Counsel, the Law Offices of
Lawrence D. Rohlfing; and

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Counsel’s motion for attorney fees pursuant to 24 U.S.C. §406(b) in the amount of

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Counsel SHALL refund $3,900.00 to Plaintiff Marcy Marie Dadian Wallis.

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IT IS SO ORDERED.
Dated:

October 11, 2019

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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