Norris v. Berryhill

Filing 17

ORDER Granting 15 Motion for Attorney Fees Under 42 U.S.C. §406(b). Signed by Judge Thomas J. Whelan on 8/20/2019. (jao)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RICKY EARL NORRIS,

Case No.: 18-CV-0469 W (KSC)
Plaintiff,

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v.

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ORDER GRANTING MOTION FOR
ATTORNEY’S FEES UNDER 42
U.S.C. § 406(b) [DOC. 15]

ANDREW M. SAUL, Commissioner of
Social Security Administration,

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Defendant.

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Pending before the Court is Plaintiff’s counsel, the Law Offices of Lawrence D.

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Rohlfing’s (“Counsel”), motion for attorney’s fees under 42 U.S.C. §406(b). Counsel

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requests $10,000.00 in fees, with a credit to Plaintiff for the EAJA fees previously paid in

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the amount of $777.39. On August 13, 2019, Defendant filed a response taking no

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position on the request. (See Def’s Response [Doc. 16].) Plaintiff was served with the

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motion and notified that any response had to be filed within 14 days. (Mot. [Doc. 15]

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2:1–13.) To date, Plaintiff has not filed a response to Counsel’s attorney’s fee request.

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The Court decides the matter on the papers submitted, and without oral argument.

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See Civ.L.R. 7.1.d. For the following reasons, the Court GRANTS the motion [Doc. 15].

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18-CV-0469 W (KSC)

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I.

DISCUSSION

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Section 406(b) provides, in relevant part:

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Whenever a court renders a judgment favorable to a claimant under this
subchapter 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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Id. “In contrast to fees awarded under fee-shifting provisions such as 42 U.S.C. § 1988,

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the fee is paid by the claimant out of the past-due benefits awarded; the losing party is not

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responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir.2009) (en

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banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802, (2002)). “The goal of fee awards

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under section 460(b) is to provide adequate incentive to represent claimants while

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ensuring that the usually meager disability benefits received are not greatly depleted.”

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Thomas v. Colvin, 2015 WL 1529331, *1 (E.D. Cal. 2015) (citing Cotter v. Bowen, 879

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F.2d 359, 365 (8th Cir.1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807).

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In evaluating an attorney’s fee request, courts “must respect ‘the primacy of lawful

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attorney-client fee arrangements,’ … ‘looking first to the contingent-fee agreement, then

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testing for reasonableness.’” Crawford, 586 F.3d at 1148 (quoting Gilbrecht, 535 U.S. at

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793, 808). Factors courts may consider in evaluating the reasonableness of the attorney

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fee award are: (1) the character of the representation; (2) the results achieved; (3) whether

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the attorney engaged in dilatory conduct; (4) whether the benefits are large in comparison

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to the amount of time counsel spent on the case; and (5) the attorney’s record of hours

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worked and counsel's regular hourly billing charge for non-contingent cases. Thomas,

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2015 WL 1529331, *2 (citing Crawford, 586 F.3d at 1148).

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Here, Counsel was successful in obtaining a favorable result for Plaintiff in this

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Court by securing a remand to the Commissioner for further administrative proceedings.

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(Order [Doc. 10] 1:24–2:2.) On remand, the Commissioner granted Plaintiff’s

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18-CV-0469 W (KSC)

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application for benefits, entitling him to receive $83,082.00 in retroactive benefits.

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(Shapiro Decl. [Doc. 15-1] ¶¶ 3, 4, citing Ex. 2 and Ex. 3.1) Thus, no reduction is

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warranted due to a substandard performance, nor is there any basis to reduce fees based

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on dilatory conduct, as there is no indication Counsel caused any excessive delay.

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Additionally, the Court has reviewed the amount of time spent on this matter, Counsel’s

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experience, and the United States Consumer Law Attorney Fee Survey Report 2015–

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2016. (See Shapiro Decl., ¶¶ 5–8, Ex. 4 and Ex. 5.) Considering all these factors, the

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Court finds the effective hourly rate is consistent with the market and the work on this

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matter reasonable.

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II.

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CONCLUSION & ORDER
For the reasons stated above, the Court GRANTS the motion for attorney’s fees

[Doc. 15] and ORDERS as follows:

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2.

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The Law Offices of Lawrence D. Rohlfing is AWARDED $10,000.00 in
attorney’s fees.
The Commissioner shall certify the fee of $10,000 payable to the Law
Offices of Lawrence D. Rohlfing.
The Law Offices of Lawrence D. Rohlfing shall reimburse Plaintiff Ricky
Earl Norris $777.39 for the EAJA fees previously paid.

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IT IS SO ORDERED.

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Dated: August 20, 2019

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Brian C. Shapiro’s declaration, and all exhibits referenced therein are attached to the Motion.

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18-CV-0469 W (KSC)