Lopez v. Colvin

Filing 28

ORDER by Magistrate Judge Jacqueline Scott Corley granting 26 Motion for Attorney Fees. (ahm, COURT STAFF) (Filed on 1/17/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ERNESTINA LOPEZ,
Plaintiff,

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United States District Court
Northern District of California

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Case No.14-cv-03395-JSC
ORDER RE: MOTION FOR
ATTORNEY’S FEES

v.
CAROLYN W. COLVIN,

Re: Dkt. No. 26

Defendant.

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In this Social Security appeal, Plaintiff Ernestina Lopez moves for attorneys’ fees pursuant

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to 42 U.S.C. § 406(b). (Dkt. No. 26.) Defendant Carolyn W. Colvin, the Commissioner of the

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Social Security Administration (“SSA”), has filed a response taking no position on Plaintiff’s

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motion. After carefully considering the arguments and briefing submitted, the Court concludes

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that oral argument is unnecessary, see Civ. L.R. 7-1(b), and GRANTS Plaintiff’s motion for fees.

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BACKGROUND
This case stems from Plaintiff’s appeal of the SSA’s denial of social security disability

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benefits for a combination of impairments including lumbar spondylosis, right foot and ankle pain

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due to a crush injury in 1999, and bilateral fasciitis of the feet. On May 21, 2015, the Court

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granted Plaintiff’s motion for summary judgment, denied Defendant’s cross motion for summary

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judgment, and remanded to the SSA for an award of benefits, concluding that the Administrative

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Law Judge (“ALJ”) provided legally insufficient reasons for rejecting the opinion of Plaintiff’s

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treating physician in lieu of the consultative medical expert. (Dkt. No. 21.) On June 19, 2015,

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pursuant to the parties’ stipulation, the Court awarded $4,000 in fees to Plaintiff’s counsel

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pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Dkt. No. 25.)

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On remand, the Commissioner initially calculated past-due benefits at $106,667 from

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which the Commissioner withheld 25%, or $26,666.75, of those past-due benefits to cover

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Plaintiff’s attorney’s fees. (Dkt. No. 26 at 9; Dkt. No. 26-2 at 1-6 1) The amount withheld was

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based on a contingent fee agreement between Plaintiff and her counsel, the Law Offices of

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Lawrence D. Rohlfing. Among other things, that agreement provides that “the fee for successful

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prosecution of [an action for judicial review] is a separate 25% of the backpay awarded upon

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reversal of any unfavorable ALJ decision for work before the court.” (Dtk. No. 26-1.) Two weeks

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after her initial notice of retroactive benefits, the Commissioner notified Plaintiff that she would

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receive an additional $23,866 for past-due child benefits. (Dkt. No. 26-2.) Plaintiff’s retroactive

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benefits thus total $130,533. (Dkt. No. 26 at 9.)
Pursuant to 42 U.S.C. § 406(b), Plaintiff’s counsel now moves for attorney’s fees in the

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United States District Court
Northern District of California

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amount of $26,600, which is less than 25 percent of Plaintiff’s total retroactive benefits, with

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counsel to reimburse Plaintiff the $4,000 in EAJA fees previously paid by the Commissioner.

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(Dkt. No. 26.) Plaintiff’s counsel served Plaintiff with a copy of the motion for attorney’s fees

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and supporting papers, but Plaintiff has not filed a response or raised any objections to the fee

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request. (Dkt. No. 26 at 2.) The Commissioner filed a response taking no position on the request

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for fees. (Dkt. No. 27.)
LEGAL STANDARD

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Section 406(b) provides that “[w]henever a court renders a judgment favorable to a [social

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security] claimant under this subchapter who was represented before the court by an attorney, the

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court may determine and allow as part of its judgment a reasonable fee” to claimant’s attorney;

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such a fee can be no more than 25% of the total of past-due benefits awarded to the claimant. 42

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U.S.C. § 406(b)(1)(A). A court may award such a fee even if the court’s judgment did not

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immediately result in an award of past-due benefits; where the court has rendered a judgment

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favorable to a claimant by reversing an earlier determination by an ALJ and remanding for further

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consideration, the court may calculate the 25% fee based upon any past-due benefits awarded on

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remand. See, e.g., Crawford v. Astrue, 586 F.3d 1142 (9th Cir. 2009) (en banc); Wells v. Colvin,

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Record citations are to material in the Electronic Case File (“ECF”); pinpoint citations are to the
ECF-generated page numbers at the top of the documents.
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No. 12-CV-05287-JST, 2015 WL 4072847, at *1 (N.D. Cal. July 2, 2015).

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Under Section 406(b), a court must serve “as an independent check” of contingency fee

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agreements “to assure that they yield reasonable results.” Gisbrecht v. Barnhart, 535 U.S. 789,

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807 (2002). Section 406(b) “does not displace contingent-fee agreements within the statutory

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ceiling; instead, [Section] 406(b) instructs courts to review for reasonableness fees yielded by

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those agreements.” Id. at 808-09. The court’s review of a fee agreement is based on the character

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of the representation and the results achieved, see Gisbrecht, 535 U.S. at 808, and can include

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analyzing: whether counsel provided substandard representation; any dilatory conduct by counsel

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to accumulate additional fees; whether the requested fees are excessively large in relation to the
benefits achieved; and the risk counsel assumed by accepting the case. See Crawford, 586 F.3d at

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United States District Court
Northern District of California

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1151-52; Wells, 2015 WL 4072847 at *1.

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A court must offset an award of Section 406(b) attorneys’ fees by any award of fees

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granted under the EAJA. Gisbrecht, 535 U.S. at 796; Parrish v. Comm’r of Soc. Sec. Admin., 698

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F.3d 1215, 1218 (9th Cir. 2012).

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ANALYSIS
Plaintiff’s counsel has demonstrated that the amount of fees requested is reasonable for the

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services rendered. See Gisbrecht, 535 U.S. at 807. First, while not dispositive, Plaintiff and

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counsel’s contingency fee agreement is within the 25% threshold permitted under Section 406(b),

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as the agreement provides that counsel will not ask for a fee of more than 25% of total past-due

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benefits awarded. (Dkt. No. 26-1.) Further, counsel in fact seeks an award of less than that

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amount as counsel’s requested fees represent 20.4% of the total past-due benefits awarded.

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Second, there is no indication that a reduction of fees is warranted due to any substandard

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performance by counsel or that counsel delayed these proceedings in an effort to increase the

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amount of fees awarded. To the contrary, counsel provided substantial work and achieved

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favorable results for Plaintiff as he succeeded in having the Court remand this matter to the

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Commissioner for an award of benefits. Nor is the amount of fees, $26,600, excessive in relation

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to the past-due benefits award of $130,533.2 See, e.g., Conner v. Colvin, No. 13-CV-03324-

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KAW, 2016 WL 5673297, at *3 (N.D. Cal. Oct. 3, 2016) (awarding $17,746.00 in fees following

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a retroactive benefits award of $94,987.60); White v. Colvin, No. 14-CV-05584-EMC, 2016 WL

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5358587, at *1 (N.D. Cal. Sept. 26, 2016) (awarding $31,067.25 in fees following an award of

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$124,269.80 in past-due benefits); Perry v. Astrue, No. 09-CV-04908-MEJ, 2013 WL 6440955, at

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*1 (N.D. Cal. Dec. 9, 2013) (awarding $64,091.75 in fees following a retroactive benefits award of

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$256,367). Lastly, the Court finds that Plaintiff’s counsel assumed a substantial risk of not

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recovering fees when he accepted this case. Plaintiff and counsel entered into the contingency fee

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agreement prior to the filing of this action. (Dkt. No. 26-1.) At that time, the Agency had
completely denied Plaintiff any requested benefits, and counsel could not know that the Court

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United States District Court
Northern District of California

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would remand to the Commissioner for an award past-due benefits.
Accordingly, the Court finds that the amount of requested fees is reasonable.

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CONCLUSION

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For the reasons described above, the Court GRANTS Plaintiff’s motion for fees. The

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Commissioner is directed to certify fees under 42 U.S.C. § 406(b) in the amount of $26,600.00,

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payable to the Law Offices of Lawrence D. Rohlfing. Plaintiff’s counsel is ordered to refund the

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previously awarded EAJA fees, in the amount of $4,000.00, to Plaintiff.

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This Order disposes of Docket No. 26.

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IT IS SO ORDERED.

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Dated: January 17, 2017

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JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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The Court notes that a fee award of $26,600 for 23.5 hours of attorney time reflects an effective
hourly rate of just over $1,131 per hour. While is a very high effective hourly rate, the Court
nonetheless approves the fee award because the Crawford factors on balance weigh in favor of a
finding that the fees sought here are reasonable. See Smith v. Astrue, No. 06-2373 DAD, 2011
WL 5024462, at *2 n.3 (E.D. Cal. Oct. 20, 2011) (reaching similar conclusion regarding a
$20,715.45 fee award for 20.4 hours of work).
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