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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARCY MARIE DADIAN WALLIS, 12 Plaintiff, v. 13 14 ANDREW M. SAUL1, Commissioner of Social Security, 15 Defendant. ) ) ) ) ) ) ) ) ) ) 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) 16 Brian Shapiro, counsel for Plaintiff Marcy Marie Dadian Wallis, seeks an award of attorney fees 17 18 pursuant to 42 U.S.C. § 406(b). (Doc. 21) Neither Plaintiff nor the Commissioner of Social Security 19 oppose the motion.2 For the following reasons, the motion for attorney fees is GRANTED. 20 I. Relevant Background 21 Plaintiff entered into a contingent fee agreement with the Law Offices of Lawrence D. Rohlfing 22 on October 16, 2015. (Doc. 21-1) The agreement entitled counsel to an award of “25% of the backpay 23 awarded” if judicial review of an administrative decision was required, and the adverse decision of an 24 ALJ was reversed. (Id. at 1) The agreement also required counsel to “seek compensation under the 25 Equal Access to Justice Act,” and the amount awarded would be credited to Plaintiff “for fees 26 1 27 28 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). 2 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) 1 1 otherwise payable for court work.” (Id.) 2 On October 30, 2015, Plaintiff filed a complaint for review of the administrative decision 3 denying her application for Social Security benefits. (Doc. 1) The Court found the ALJ failed to 4 identify legally sufficient reasons to support the adverse credibility determination and remanded the 5 matter for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 17 at 10-15) 6 Following the entry of judgment in favor of Plaintiff (Doc. 18), the Court awarded $3,900 in attorney 7 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 8 9 beginning February 4, 2014. (Doc. 21-2 at 1, 23) On April 20, 2019, the Social Security 10 Administration concluded Plaintiff was entitled to monthly benefits from Social Security beginning 11 August 2014. (Doc. 21-3 at 1) In total, Plaintiff was entitled to $49,116.52 in past-due benefits, out of 12 which the Commissioner withheld $12,279.13 for payment of attorney’s fees. (Id. at 2; see also Doc. 13 21 at 3) 14 Mr. Shapiro filed the motion now before the Court on September 16, 2019, seeking fees in the 15 amount of $6,279.00. (Doc. 21) Mr. Shapiro served Plaintiff with the motion and informed her of the 16 right to file a response to indicate whether she agreed or disagreed with the requested fees. (Id. at 2, 14) 17 Plaintiff has not opposed the motion. 18 II. 19 20 Attorney Fees under § 406(b) An attorney may seek an award of fees for representation of a Social Security claimant who is awarded benefits: 23 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. . . . 24 42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) 25 controls fees awarded for representation of Social Security claimants). 21 22 26 A contingency fee agreement is unenforceable if it provides for fees exceeding the statutory 27 amount. Gisbrecht, 535 U.S. at 807 (“Congress has provided one boundary line: Agreements are 28 unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits.”). 2 1 III. Discussion and Analysis District courts “have been deferential to the terms of contingency fee contracts § 406(b) cases.” 2 3 Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). However, the Court must review 4 contingent-fee arrangements “as an independent check, to assure that they yield reasonable results in 5 particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, the Court should consider “the character of 6 the representation and the results the representative achieved.” Id. at 808. In addition, the Court should 7 consider whether the attorney performed in a substandard manner or engaged in dilatory conduct or 8 excessive delays, and whether the fees are “excessively large in relation to the benefits received.” 9 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 10 11 percent of any awarded past-due benefits. The Law Offices of Lawrence D. Rohlfing accepted the risk 12 of loss in the representation and expended a total of 23.6 hours while representing Plaintiff before the 13 District Court. (Doc. 21 at 3; Doc. 21-4 at 1-2) Due to counsel’s work, the action was remanded 14 further proceedings, and Plaintiff received a favorable decision. For this, Mr. Shapiro requests a fee of 15 $6,279.00. (Doc. 21 at 3) Because $3,900.00 was previously paid under the EAJA, the net cost to 16 Plaintiff is $2,279.00. Finally, though served with the motion and informed of the right to oppose the 17 fee request (Doc. 21 at 2, 14), Plaintiff did not file oppose the request and thereby indicates her implicit 18 belief that the fee request is reasonable. Significantly, there is no indication Mr. Shapiro performed in a substandard manner or engaged 19 20 in severe dilatory conduct to the extent that a reduction in fees is warranted. Plaintiff was able to 21 secure a remand for payment of benefits following her appeal, including an award of past-due benefits. 22 Finally, the fees requested are approximately 13 percent of the past-due benefits, and do not exceed 23 twenty-five percent maximum permitted under 42 U.S.C. §406(b), or the amount withheld by the 24 administration for payment of fees. 25 IV. 26 Conclusion and Order Based upon the tasks completed and results achieved following the remand for further 27 proceedings, the Court finds the fees sought by Mr. Cho and the Law Offices of Lawrence D. Rohlfing 28 are reasonable. Accordingly, the Court ORDERS: 3 1 1. $6,279.00 is GRANTED; 2 3 2. The Commissioner shall pay the amount directly to Counsel, the Law Offices of Lawrence D. Rohlfing; and 4 5 Counsel’s motion for attorney fees pursuant to 24 U.S.C. §406(b) in the amount of 3. Counsel SHALL refund $3,900.00 to Plaintiff Marcy Marie Dadian Wallis. 6 7 8 9 IT IS SO ORDERED. Dated: October 11, 2019 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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