Pendergast v. Commissioner of Social Security

Filing 31

ORDER GRANTING 29 Counsel's Motion for Attorney Fees Pursuant to 41 U.S.C. § 406(b), signed by Magistrate Judge Jennifer L. Thurston on 12/22/2020. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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BRYAN RUSSELL PENDERGAST,

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Plaintiff,
v.

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ANDREW M. SAUL,
Commissioner of Social Security,

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Defendant.

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Case No.: 1:16-cv-0552 JLT
ORDER GRANTING COUNSEL’S MOTION
FOR ATTORNEY FEES PURSUANT TO
42 U.S.C. § 406(b)
(Doc. 29)

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Cyrus Safa, counsel for Plaintiff Adolfo Lugo, seeks an award of attorney fees pursuant to 42

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U.S.C. § 406(b). (Doc. 29) Neither Plaintiff nor the Commissioner of Social Security have opposed

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

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I.

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Relevant Background
In 2016, Plaintiff entered into a contingent fee agreement with the Law Offices of Lawrence D.

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Rohlfing. (Doc. 29-1 at 1) Plaintiff indicated that he agreed his was entitled to “25% of the backpay

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awarded upon reversal of the unfavorable ALJ decision for work before the court.” (Id., emphasis

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omitted) The agreement also indicated counsel may seek compensation under the Equal Access to

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Justice Act, and the amount awarded would be credited to Plaintiff. (Id.)

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On April 19, 2016, Plaintiff filed a complaint for review of the administrative decision denying

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an application for Social Security benefits. (Doc. 1) The Court found the administrative law judge

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“failed to apply the proper legal standards” in evaluating the medical record. (Doc. 25 at 1, 14-17)
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Thus, the Court remanded the matter for further proceedings pursuant to sentence four of 42 U.S.C. §

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405(g) on July 17, 2017. (Id. at 18) Following the entry of judgment in favor of Plaintiff (Doc. 22), the

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Court awarded $3,000.00 in attorney fees pursuant to the Equal Access to Justice Act. (Doc. 28 at 1)
Upon remand, the administration issued a partially favorable decision, finding Plaintiff was

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entitled to $89,920.00 in past-due benefits. (Doc. 29-3 at 2) Mr. Safa reports that the Law Offices of

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Lawrence D. Rohlfing “received an electronic message which included a Form SSA-1099 which

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indicate[d] attorney fees in the amount of $22,4550.00.” (Doc. 29 at 15, Safa Decl. ¶ 4)

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Counsel filed the motion now before the Court on December 2, 2020, seeking approximately

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10% of the past-due benefits, in the amount of $9,000.00. (Doc. 29 at 5) Mr. Safa also indicated he

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would credit Plaintiff the amount of fees previously awarded under the EAJA. (Id. at 1) Plaintiff was

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served with the motion and informed of the right to file a response to indicate whether he agreed or

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disagreed with the requested fees within fourteen days. (Id. at 2, 17) Plaintiff has not opposed or

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responded to the motion for fees. The Commissioner filed a response to the motion on December 3,

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2020, indicating “[t]he Commissioner was not a party to the contingent-fee agreement between Counsel

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and Plaintiff and therefore is not in a position to either assent to or object to the § 406(b) fees that

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Counsel seeks from Plaintiff’s past-due benefits.” (Doc. 30 at 2)

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II.

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

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Attorney Fees under § 406(b)

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). A contingency fee agreement

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is unenforceable if it provides for fees exceeding the statutory amount. Gisbrecht, 535 U.S. at 807

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(“Congress has provided one boundary line: Agreements are unenforceable to the extent that they

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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 he agreed to pay twenty-five

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percent of any awarded past-due benefits. (Doc. 29-1 at 1) Counsel accepted the risk of loss in the

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representation and expended a total of 17.2 hours while representing Plaintiff before the District Court.

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(Doc. 29 at 5) Due to counsel’s work, the action was remanded further proceedings, and Plaintiff

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received a favorable decision. For this, Mr. Safa requests a fee of $9,000, which is approximately

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10.1% of the past-due benefits owed. (Doc. 29 at 6) Because counsel intends to refund the $3,000.00

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that was previously paid under the EAJA, the net cost to Plaintiff is $6,000. (See id. at 13) Finally,

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although served with the motion and informed of the right to oppose the fee request (id. at 17), Plaintiff

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did not file oppose the request and thereby indicates an implicit belief that the total amount requested

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for attorney fees is reasonable

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Significantly, there is no indication that counsel performed in a substandard manner or engaged

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in severe dilatory conduct. Plaintiff was able to secure a remand for payment of benefits following the

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appeal, including an award of past-due benefits. Finally, the fees requested do not exceed twenty-five

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percent maximum permitted under 42 U.S.C. §406(b) or the amount agreed upon by counsel and

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Plaintiff. (See Doc. 29-1 at 1)

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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. Safa and the Law Offices of Lawrence D. Rohlfing

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are reasonable. Accordingly, the Court ORDERS:
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$9,000.00 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 $3,000.00 to Plaintiff Bryan Russell Pendergast.

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IT IS SO ORDERED.
Dated:

December 22, 2020

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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