Simmons v. Commissioner of Social Security

Filing 35

ORDER by Judge Joseph C. Spero granting in part and denying in part 33 Motion for Attorney Fees.The Court awards $5,968.51 in attorney fees under 42 U.S.C. § 406(b). (jcslc1S, COURT STAFF) (Filed on 1/18/2019)

1
2
3
4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6
CHRISTOPHER L. SIMMONS,

7

Case No. 16-cv-04435-JCS

Plaintiff,
8
v.
9
COMMISSIONER OF SOCIAL
SECURITY,

10

Re: Dkt. No. 33

Defendant.

11

United States District Court
Northern District of California

ORDER GRANTING IN PART
MOTION FOR AWARD OF
ATTORNEYS FEES

12
13

I.

INTRODUCTION

14

Plaintiff’s attorney, Steven G. Rosales, has applied for attorney fees permitted by section

15

206(b) of the Social Security Act, 42 U.S.C. § 406(b), for representing Plaintiff before this Court

16

under a written contingent-fee agreement. Counsel’s Motion for Attorney Fees (“Motion”), Dkt.

17

No. 33. In the Motion, Counsel asks the Court to award $14,921.00 in attorney fees, which

18

constitutes 25% of the past due benefits that were awarded to Plaintiff upon remand to the Social

19

Security Commissioner. For the reasons stated below, the Court finds that counsel’s reasonable

20

fees amount to $5,968.51, that is, 10% of Plaintiff’s back pay award, and therefore GRANTS the

21

Motion and reduces the award accordingly.1

22

II.

PROCEDURAL BACKGROUND
After receiving a final denial of an application for disability benefits under the Social

23
24

Security Act, Plaintiff filed this action seeking judicial review under 42 U.S.C. § 405(g). Pursuant

25

to a stipulation of the parties extending the original briefing dates set by the Court, Plaintiff’s

26

summary judgment motion was due on April 10, 2017. Dkt. No. 16. The Court extended that

27
28

1

The parties have consented to the jurisdiction of the undersigned magistrate judge pursuant to 28
U.S.C. § 636(c).

1

deadline to May 25, 2017 pursuant to another stipulation. Docket No. 19. On June 15, 2017,

2

when Plaintiff had not yet filed a motion for summary judgment, the Court issued an order to

3

show cause why the case should not be dismissed for failure to prosecute, requiring counsel to

4

respond by June 29, 2017. Dkt. No. 20. Mr. Rosales, who practices with the Law Offices of

5

Lawrence D. Rohlfing, filed a response one day late, on June 30, 2017, explaining that the delay

6

was the result of a personal tragedy. He filed a motion for summary judgment the same day, and

7

the Commissioner filed a cross-motion on August 4, 2017. Although Plaintiff was permitted to

8

file a reply, Mr. Rosales chose not to file one.
Plaintiff’s motion for summary judgment was thirteen pages long. The motion fell far

9

below the standard that is expected of attorneys who practice in this Court. As Judge Corley

11

United States District Court
Northern District of California

10

recently pointed out, the motion for summary judgment that was filed in this case was in large part

12

“boilerplate” that Mr. Rosales has used in numerous other cases. See Stevens v. Berryhill, Case

13

No. 17-cv-3623 JSC, Dkt. No. 26 (Order Striking Plaintiff’s Motion for Summary Judgment

14

And Ordering Plaintiff’s Counsel To Show Cause), filed September 17, 2018.2 As in Stevens, the

15

motion for summary judgment file in this action reflected little familiarity with the record and

16

often alternated between using “he” and “she” in referring to Plaintiff; similarly, Plaintiff was

17

sometimes referred to as “Mr. Simmons” and other times referred to as “Ms. Simmons” in the

18
19
20

In her Order, Judge Corley noted that Mr. Rosales had been filing “boilerplate” summary
judgment motions in countless cases and specifically cited the summary judgment motion filed in
this action, stating:
2

21

The Court has reviewed the dockets of other cases filed by Mr.
Rosales in this District and notes that the brief he filed in this case is
nearly identical to that he filed in Rosales v. Berryhill, No. 17-823
SK, Dkt. No. 21 (N.D. Cal. Sept. 11, 2017). In fact, the erroneous
record citation to a male plaintiff with substance abuse issues in
Plaintiff’s brief here is taken from the Rosales case. Compare Dkt.
No. 22 at 7:19-22 with Rosales, Dkt. No. 21 at 7:22- 24. The few
portions of the brief in this case which are not the same as the brief in
Rosales are nearly identical to the brief in Simmons v. Berryhill, No.
16-4435 JCS, Dkt. No. 23 (N.D. Cal. June 30, 2017). Compare Dkt.
No. 22 at 9:1-10:2 with Simmons, Dkt. No. 23 at 9:3-10:5. See also
Walsh v. Colvin, No. 15-2737 KAW, Dkt. No. 29 (N.D. Cal. Sept. 14,
2016) (similar boilerplate motion for summary judgment).

22
23
24
25
26
27
28

Id. at 2.
2

1

motion. Despite these shortcomings, the Court concluded that Plaintiff had sufficiently raised the

2

main issues in the case and that the Commissioner had erred in denying benefits. Accordingly, the

3

Court granted Plaintiff’s motion and remanded for award of benefits. Dkt. No. 28.
Pursuant to the parties’ stipulation, the Court ordered payment of attorney fees under the

4
5

Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d), in the amount of $4,000.00. Dkt. No.

6

32.

7

III.

ANALYSIS

8

A.

9

This Court has jurisdiction to determine the reasonableness of the requested fees pursuant

Legal Standard

to 42 U.S.C. § 406(b)(1)(A), which provides that “[w]henever a court renders a judgment

11

United States District Court
Northern District of California

10

favorable to a claimant . . . who was represented before the court by an attorney, the court may

12

determine and allow as part of its judgment a reasonable fee for such representation, not in

13

excess of 25% of the total of the past due benefits to which the claimant is entitled by reason of

14

such judgment.” In Gisbrecht v. Barnhart, the Supreme Court held that Section 406(b) does not

15

“displace” contingent fee arrangements as the “primary means by which fees are set for

16

successfully representing Social Security benefits claimants in court.” 535 U.S. 789, 807 (2002).

17

Rather, under this provision the court is to act as “an independent check” to assure that

18

contingency fee agreements between Social Security claimants and their attorneys will “yield

19

reasonable results in particular cases.” Id. Thus, the starting point for the analysis is consideration

20

of the contingent fee arrangement rather than the usual lodestar approach to calculating reasonable

21

attorneys’ fees. Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009). According to the Ninth

22

Circuit, under Gisbrecht, “[t]he Supreme Court’s clear directive [was] that the district court must

23

first look to the fee agreement and then adjust downward if the attorney provided substandard

24

representation or delayed the case, or if the requested fee would result in a windfall.” Id. In

25

conducting this analysis, the Court may consider the lodestar amount as an “aid” but that amount

26

is not considered presumptively reasonable. Gisbrecht, 535 U.S. at 807.

27
28

After the Court has determined the reasonable amount of § 406(b) attorney fees, it must
take into account the fees paid by the Government under EAJA by requiring the claimant’s
3

1

attorney to refund to the claimant the amount of the smaller fee up to the point where the

2

claimant receives 100% of the past-due benefits. Gisbrecht, 535 U.S. at 796.

3

B.

4

Plaintiff Christopher Simmons entered into a contingent fee agreement with the Law

Discussion

5

Offices of Lawrence D. Rohlfing and Steven Rosales, promising to pay 25% of any back pay

6

award obtained as a result of the court’s reversal of the Commissioner’s denial of benefits. See

7

Docket 33-1 (Contingency Fee Agreement). Under that agreement, Plaintiff’s counsel is entitled

8

to $14,921.00, which is 25% of the back pay that was awarded to Plaintiff by the Commissioner

9

after the case was remanded, so long as the Court finds that that amount is reasonable under the
standards set forth above. The Court finds that this amount is not reasonable because of the delay

11

United States District Court
Northern District of California

10

associated with filing of the summary judgment motion and the substandard quality of the

12

representation that was provided; the Court also finds that the fees Mr. Rosales requests would

13

constitute a windfall in light of the circumstances of this case.
With respect to the delay, the Social Security Procedural Order in this case required that

14
15

Plaintiff file his motion for summary judgment 28 days after Defendant filed an answer. See Dkt.

16

No. 4. As the answer was filed on January 11, 2018, Plaintiff’s summary judgment motion would

17

have been due by February 8, 2018. Instead, Plaintiff requested two extensions and failed to meet

18

even the extended May 25, 2018 deadline, ultimately filing his summary judgment motion on June

19

30, 2018 – almost a full year after filing the initial complaint and many months after the deadline

20

established in the original scheduling order. Courts have recognized that delay is an appropriate

21

basis for reducing a fee award under Section 406(b) and the Court finds that such a reduction is

22

appropriate in this case. Rodriquez v. Bowen, 865 F.2d 739, 746 (6th Cir. 1989) (finding that

23

“delay is probably the most common problem encountered” in determining whether a contingent

24

fee award under Section 406(b) is reasonable, and noting that “because the award is based on the

25

amount of ‘past-due’ benefits which increase as time passes, a lawyer is almost always financially

26

served by delay in a final decision on the claim.”); cited with approval in Crawford, 586 F.3d at

27

1148.

28

Even more troubling is the substandard quality of Mr. Rosale’s representation with respect
4

1

to the single pleading he filed on Plaintiff’s behalf, the summary judgment motion. The motion

2

was largely boilerplate, with almost no discussion of the specific facts of the case or application of

3

legal standards to those facts. See Rodriquez, 865 F.2d at 747 (6th Cir. 1989)(“Where a case has

4

been submitted on boilerplate pleadings, in which no issues of material fact are present and where

5

no legal research is apparent, the benchmark twenty-five percent of awards fee would obviously

6

be inappropriate.”). Although the Court granted Plaintiff’s motion, counsel’s inadequate brief

7

(and failure to file a reply to the Commissioner’s summary judgment motion) significantly

8

increased the risk that Plaintiff would not prevail. His failure to address the specifics of his claims

9

and apparent lack of familiarity with the record also imposed a significant burden on the Court.
Finally, the Court concludes that the fees that Mr. Rosales seeks would constitute a

11

United States District Court
Northern District of California

10

windfall. Counsel has provided billing records attesting that he devoted 18.9 hours to this case, of

12

which he says 17.3 hours were devoted to the summary judgment motion. See Dkt. No. 33-4. To

13

the extent this representation is accurate, this amount of time is entirely unreasonable given the

14

poor quality of Plaintiff’s brief. As noted above, counsel did not summarize the record or point to

15

relevant evidence in the record to support his arguments; his legal arguments also did not reflect

16

any significant legal research as he used boilerplate legal standards recycled from other briefs.

17

Given these shortcomings, no more than three hours would be reasonable for counsel’s work on

18

the summary judgment motion. In other words, a reasonable amount of attorney hours for the

19

work performed in this case would be no more than five hours, which assumes that all of the other

20

time listed on the billing record submitted by Mr. Rosales was reasonable. Using that amount, a

21

25 % contingency fee would give rise to an hourly rate of close to $3,000. The Court is mindful

22

that “[l]odestar fees will generally be much less than contingent fees because the lodestar method

23

tends to under-compensate attorneys for the risk they undertook in representing their clients and

24

does not account for the fact that the statute limits attorneys’ fees to a percentage of past-due

25

benefits and allows no recovery from future benefits, which may far exceed the past-due benefits

26

awarded.” Crawford, 586 F.3d at 1150. Nonetheless, the Court concludes that such an amount

27

would clearly constitute a windfall under the circumstances of this case.

28

Considering these factors, the Court concludes that a 25% contingency fee gives rise to a
5

1

fee that is unreasonable; instead, the Court concludes that a 10% contingency fee is reasonable,

2

giving rise to an award of $5,968.51 in attorneys’ fees under 42 U.S.C. § 406(b).

3

IV.

4

CONCLUSION
For the reasons stated above, the Motion is GRANTED. The Court awards $5,968.51 in

5

attorneys’ fees under 42 U.S.C. § 406(b). Counsel shall refund Mr. Simmons the $4,000

6

previously awarded under the EAJA.

7

IT IS SO ORDERED.

8
9

Dated: January 18, 2019

10

United States District Court
Northern District of California

11
12

______________________________________
JOSEPH C. SPERO
Chief Magistrate Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6