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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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ERNESTINA LOPEZ, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No.14-cv-03395-JSC ORDER RE: MOTION FOR ATTORNEY’S FEES v. CAROLYN W. COLVIN, Re: Dkt. No. 26 Defendant. 12 13 In this Social Security appeal, Plaintiff Ernestina Lopez moves for attorneys’ fees pursuant 14 to 42 U.S.C. § 406(b). (Dkt. No. 26.) Defendant Carolyn W. Colvin, the Commissioner of the 15 Social Security Administration (“SSA”), has filed a response taking no position on Plaintiff’s 16 motion. After carefully considering the arguments and briefing submitted, the Court concludes 17 that oral argument is unnecessary, see Civ. L.R. 7-1(b), and GRANTS Plaintiff’s motion for fees. 18 19 BACKGROUND This case stems from Plaintiff’s appeal of the SSA’s denial of social security disability 20 benefits for a combination of impairments including lumbar spondylosis, right foot and ankle pain 21 due to a crush injury in 1999, and bilateral fasciitis of the feet. On May 21, 2015, the Court 22 granted Plaintiff’s motion for summary judgment, denied Defendant’s cross motion for summary 23 judgment, and remanded to the SSA for an award of benefits, concluding that the Administrative 24 Law Judge (“ALJ”) provided legally insufficient reasons for rejecting the opinion of Plaintiff’s 25 treating physician in lieu of the consultative medical expert. (Dkt. No. 21.) On June 19, 2015, 26 pursuant to the parties’ stipulation, the Court awarded $4,000 in fees to Plaintiff’s counsel 27 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (Dkt. No. 25.) 28 On remand, the Commissioner initially calculated past-due benefits at $106,667 from 1 which the Commissioner withheld 25%, or $26,666.75, of those past-due benefits to cover 2 Plaintiff’s attorney’s fees. (Dkt. No. 26 at 9; Dkt. No. 26-2 at 1-6 1) The amount withheld was 3 based on a contingent fee agreement between Plaintiff and her counsel, the Law Offices of 4 Lawrence D. Rohlfing. Among other things, that agreement provides that “the fee for successful 5 prosecution of [an action for judicial review] is a separate 25% of the backpay awarded upon 6 reversal of any unfavorable ALJ decision for work before the court.” (Dtk. No. 26-1.) Two weeks 7 after her initial notice of retroactive benefits, the Commissioner notified Plaintiff that she would 8 receive an additional $23,866 for past-due child benefits. (Dkt. No. 26-2.) Plaintiff’s retroactive 9 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 10 United States District Court Northern District of California 11 amount of $26,600, which is less than 25 percent of Plaintiff’s total retroactive benefits, with 12 counsel to reimburse Plaintiff the $4,000 in EAJA fees previously paid by the Commissioner. 13 (Dkt. No. 26.) Plaintiff’s counsel served Plaintiff with a copy of the motion for attorney’s fees 14 and supporting papers, but Plaintiff has not filed a response or raised any objections to the fee 15 request. (Dkt. No. 26 at 2.) The Commissioner filed a response taking no position on the request 16 for fees. (Dkt. No. 27.) LEGAL STANDARD 17 Section 406(b) provides that “[w]henever a court renders a judgment favorable to a [social 18 19 security] claimant under this subchapter who was represented before the court by an attorney, the 20 court may determine and allow as part of its judgment a reasonable fee” to claimant’s attorney; 21 such a fee can be no more than 25% of the total of past-due benefits awarded to the claimant. 42 22 U.S.C. § 406(b)(1)(A). A court may award such a fee even if the court’s judgment did not 23 immediately result in an award of past-due benefits; where the court has rendered a judgment 24 favorable to a claimant by reversing an earlier determination by an ALJ and remanding for further 25 consideration, the court may calculate the 25% fee based upon any past-due benefits awarded on 26 remand. See, e.g., Crawford v. Astrue, 586 F.3d 1142 (9th Cir. 2009) (en banc); Wells v. Colvin, 27 1 28 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. 2 1 No. 12-CV-05287-JST, 2015 WL 4072847, at *1 (N.D. Cal. July 2, 2015). 2 Under Section 406(b), a court must serve “as an independent check” of contingency fee 3 agreements “to assure that they yield reasonable results.” Gisbrecht v. Barnhart, 535 U.S. 789, 4 807 (2002). Section 406(b) “does not displace contingent-fee agreements within the statutory 5 ceiling; instead, [Section] 406(b) instructs courts to review for reasonableness fees yielded by 6 those agreements.” Id. at 808-09. The court’s review of a fee agreement is based on the character 7 of the representation and the results achieved, see Gisbrecht, 535 U.S. at 808, and can include 8 analyzing: whether counsel provided substandard representation; any dilatory conduct by counsel 9 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 11 United States District Court Northern District of California 10 1151-52; Wells, 2015 WL 4072847 at *1. 12 A court must offset an award of Section 406(b) attorneys’ fees by any award of fees 13 granted under the EAJA. Gisbrecht, 535 U.S. at 796; Parrish v. Comm’r of Soc. Sec. Admin., 698 14 F.3d 1215, 1218 (9th Cir. 2012). 15 16 ANALYSIS Plaintiff’s counsel has demonstrated that the amount of fees requested is reasonable for the 17 services rendered. See Gisbrecht, 535 U.S. at 807. First, while not dispositive, Plaintiff and 18 counsel’s contingency fee agreement is within the 25% threshold permitted under Section 406(b), 19 as the agreement provides that counsel will not ask for a fee of more than 25% of total past-due 20 benefits awarded. (Dkt. No. 26-1.) Further, counsel in fact seeks an award of less than that 21 amount as counsel’s requested fees represent 20.4% of the total past-due benefits awarded. 22 Second, there is no indication that a reduction of fees is warranted due to any substandard 23 performance by counsel or that counsel delayed these proceedings in an effort to increase the 24 amount of fees awarded. To the contrary, counsel provided substantial work and achieved 25 favorable results for Plaintiff as he succeeded in having the Court remand this matter to the 26 Commissioner for an award of benefits. Nor is the amount of fees, $26,600, excessive in relation 27 28 3 1 to the past-due benefits award of $130,533.2 See, e.g., Conner v. Colvin, No. 13-CV-03324- 2 KAW, 2016 WL 5673297, at *3 (N.D. Cal. Oct. 3, 2016) (awarding $17,746.00 in fees following 3 a retroactive benefits award of $94,987.60); White v. Colvin, No. 14-CV-05584-EMC, 2016 WL 4 5358587, at *1 (N.D. Cal. Sept. 26, 2016) (awarding $31,067.25 in fees following an award of 5 $124,269.80 in past-due benefits); Perry v. Astrue, No. 09-CV-04908-MEJ, 2013 WL 6440955, at 6 *1 (N.D. Cal. Dec. 9, 2013) (awarding $64,091.75 in fees following a retroactive benefits award of 7 $256,367). Lastly, the Court finds that Plaintiff’s counsel assumed a substantial risk of not 8 recovering fees when he accepted this case. Plaintiff and counsel entered into the contingency fee 9 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 11 United States District Court Northern District of California 10 would remand to the Commissioner for an award past-due benefits. Accordingly, the Court finds that the amount of requested fees is reasonable. 12 CONCLUSION 13 For the reasons described above, the Court GRANTS Plaintiff’s motion for fees. The 14 15 Commissioner is directed to certify fees under 42 U.S.C. § 406(b) in the amount of $26,600.00, 16 payable to the Law Offices of Lawrence D. Rohlfing. Plaintiff’s counsel is ordered to refund the 17 previously awarded EAJA fees, in the amount of $4,000.00, to Plaintiff. 18 This Order disposes of Docket No. 26. 19 IT IS SO ORDERED. 20 Dated: January 17, 2017 21 22 JACQUELINE SCOTT CORLEY United States Magistrate Judge 23 24 25 2 26 27 28 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). 4

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