Tanaka v. Saul

Filing 24

ORDER Granting 23 Unopposed Motion for Attorney's Fees pursuant to 42 U.S.C. § 406(b) Following Remand and Award of Benefits. Signed by Magistrate Judge Karen S. Crawford on 1/18/2023. (All non-registered users served via U.S. Mail Service)(exs)

Case 3:20-cv-01229-KSC Document 24 Filed 01/18/23 PageID.2965 Page 1 of 6

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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TAMIKO T.,

Case No.: 20cv1229-KSC
Plaintiff,

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v.

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KILOLO KIJAKAZI, Acting
Commissioner of Social Security,

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ORDER GRANTING UNOPPOSED
MOTION FOR ATTORNEY’S FEES
PURSUANT TO 42 U.S.C. § 406(b)
FOLLOWING REMAND AND
AWARD OF BENEFITS [Doc. No. 23]

Defendant.

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Before the Court is a Motion for Attorney’s Fees filed pursuant to Title 42, United

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States Code, Section 406(b), seeking an award of fees for representing plaintiff in

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connection with an application for Social Security disability benefits which lead, on

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remand, to a decision in plaintiff’s favor and an award of past due benefits. [Doc. No. 23.]

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Plaintiff was served with the Motion and given the opportunity to oppose but did not do

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so. [Doc. No. 23, at pp. 2, 24.] Nor has defendant opposed the Motion. However, the

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Court notes that the Social Security Administration “has no direct interest in how much of

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the award goes to counsel and how much to the disabled person.” Crawford v. Astrue, 586

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F.3d 1142, 1149 (9th Cir. 2009). For the reasons outlined more fully below, the Court finds

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that the Motion for Attorney Fees filed by plaintiff’s counsel must be GRANTED. [Doc.

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No. 23.]

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Background

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Plaintiff filed an application for disability benefits on November 29, 2017. [Doc.

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No. 12-9, at pp. 2-3.] On July 22, 2019, plaintiff entered into a representation agreement

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with the Law Offices of Rohlfing & Kalagina, LLP, now the Law Offices of Lawrence D.

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Rohlfing, Inc., which filed the instant Motion. [Doc. No. 23-1, at p. 1.] Plaintiff’s claim

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for disability benefits was denied at the highest administrative level on May 21, 2020.

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[Doc. No. 12-2, at pp. 2-5.] On June 30, 2020, plaintiff filed a Complaint in this Court

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seeking judicial review of the final decision of the Commissioner. [Doc. No. 1.]

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On November 12, 2020, following a brief extension of time because of a family

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emergency, plaintiff’s counsel filed a Motion for Summary Judgment. [Doc. Nos. 14, 15,

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16.] Then, the parties entered into settlement negotiations. [Doc. Nos. 17-18.] Next,

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counsel for the parties filed a Joint Motion for Remand on January 6, 2021 [Doc. No. 19],

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which was granted in an Order filed on February 1, 2021. [Doc. No. 20]. Thereafter, the

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parties filed a Joint Motion for Attorney’s Fees pursuant to the Equal Access to Justice Act

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(the “EAJA”). [Doc. No. 21.] In an Order filed on June 15, 2021, plaintiff’s Motion was

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granted, and plaintiff’s counsel was awarded EAJA fees of $4,300.00. [Doc. No. 22.]

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On remand, an Administrative Law Judge reviewed the evidence and issued a

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“fully favorable” decision. [Doc. No. 23-2.] Plaintiff’s past-due benefits were calculated

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to be $141,546.10. [Doc. No. 23-3, at pp. 1-3.] Plaintiff’s counsel now moves for

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approval of an award of attorney’s fees in the amount of $30,000, offset by the $4,300.00

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awarded pursuant to the EAJA. [Doc. No. 23, at p. 1.]

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Discussion

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Section 406(b)(1) provides that a Federal Court that “renders judgment favorable to

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a claimant . . . who was represented before the court by an attorney” may grant the attorney

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“a reasonable fee for such representation, not in excess of 25 percent of the total of the

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past-due benefits to which the claimant is entitled by reason of such judgment. . . .” 42
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U.S.C. § 406(b)(1)(A). Because attorney’s fees are “payable only out of the benefits

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recovered,” Section 406(b) provides for court review “as an independent check, to assure

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that [fee arrangements] yield reasonable results in particular cases.” Gisbrecht v. Barnhart,

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535 U.S. 789, 792, 807 (2002). “Within the 25 percent boundary, . . . the attorney for the

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successful claimant must show that the fee sought is reasonable for the services rendered.”

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Id.

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Contingent fee contracts “are the most common fee arrangement between attorneys

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and Social Security claimants.” Gisbrecht v. Barnhart, 535 U.S. at 800. According to the

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Supreme Court in Gisbrecht, Section 406(b) is designed “to control, not to displace, fee

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agreements between Social Security benefits claimants and their counsel.” Id. at 793, 807.

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Because the underlying decisions at issue in Gisbrecht were based on “lodestar

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calculations” and had rejected “the primacy of lawful attorney-client fee agreements,” the

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Supreme Court reversed and remanded the cases for recalculation of fees payable from

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past-due benefits.1 Id. at 793.

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To determine whether attorney’s fees are reasonable, the Supreme Court directed

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courts to “look[] first to the contingent-fee agreement” to assess the reasonableness of its

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terms and to then consider “the character of the representation” and “the results the

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representative achieved.” Gisbrecht v. Barnhart, 535 U.S. at 808. “If the attorney is

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responsible for delay, for example, a reduction is in order so that the attorney will not profit

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from the accumulation of benefits during the pendency of the case in court.” Id. If the

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The lodestar method calculates the attorney’s fee by multiplying the hours
reasonably spent on the representation by a reasonable hourly rate. Gisbrecht v.
Barnhart, 535 U.S. at 797. According to the Ninth Circuit in Crawford v. Astrue, 586
F.3d at 1142, “[t]he lodestar method under-compensates attorneys for the risk they
assume in representing [social security disability] claimants and ordinarily produces
remarkably smaller fees than would be produced by starting with the contingent-fee
agreement. A district court’s use of the lodestar to determine a reasonable fee thus
ultimately works to the disadvantage of [social security disability] claimants who need
counsel to recover any past-due benefits at all.” Id. at 1149.

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benefits are large in comparison to the amount of time counsel spent on the case, a

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downward adjustment may be in order. Id. See also Crawford v. Astrue, 586 F.3d at 1151.

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Additionally, “the court may require the claimant’s attorney to submit, not as a basis

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for satellite litigation, but as an aid to the court’s assessment of the reasonableness of the

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fee yielded by the fee agreement, a record of the hours spent representing the claimant and

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a statement of the lawyer’s normal hourly billing charge for noncontingent-fee cases.”

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Gisbrecht v. Barnhart, 535 U.S. at 808. In other words, the lodestar calculation may be

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considered “but only as an aid in assessing the reasonableness of the fee.” Crawford v.

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Astrue, 586 F.3d at 1151.

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Finally, “‘Congress harmonized fees payable by the Government under EAJA with

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fees payable under § 406(b) out of the claimant’s past-due Social Security benefits in this

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manner: Fee awards may be made under both prescriptions, but the claimant’s attorney

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must ‘refun[d] to the claimant the amount of the smaller fee.’ Act of Aug. 5, 1985, Pub.L.

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99–80, § 3,99 Stat. 186. ‘Thus, an EAJA award offsets an award under Section 406(b), so

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that the [amount of the total past-due benefits the claimant actually receives] will be

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increased by the . . . EAJA award up to the point the claimant receives 100 percent of the

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past-due benefits.’ [Citation omitted.]” Gisbrecht v. Barnhart, 535 U.S. at 796.

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Here, the amount of past due benefits awarded is $141,546.10.2 [Doc. No. 23-3, at

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pp. 1-2.] The representation agreement signed by plaintiff and counsel provides for

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counsel to be paid “25% of past due benefits.” [Doc. No. 23-1, at p. 1.] Counsel seeks

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Although the Motion filed by plaintiff’s counsel indicates plaintiff was awarded
past due benefits in the amount of $135,355.00 [Doc. No. 23, at p. 6], the Court was
unable to locate support in the record for this amount. Rather, in a letter dated August 30,
2022, plaintiff was advised by the Social Security Administration that she would receive
a check in the amount of $106,707.35 for past due benefits and that 25 percent of past
due benefits in the amount of $34,838.75 were withheld for the payment of attorney’s
fees. Thus, the full amount of past due benefits is $106,707.35 plus $34,838.75, which is
$141,546.10. [Doc. No. 23-3, at pp. 1-3.]

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approval of a fee in the amount of $30,000, or approximately 21 percent of past due

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benefits, which is less than the agreed-upon amount of 25 percent. [Doc. No. 23, at p. 6.]

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Based on the information before the Court, there is nothing to indicate the

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requested fee amount should be reduced for substandard performance or undue delay.

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Counsel did request and was granted one brief continuance of 14 days due to a family

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emergency. [Doc. Nos. 14, 15.] Plaintiff’s Motion for Summary Judgment was then

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timely filed on the continued date of November 12, 2020. [Doc. Nos. 16.] Shortly

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thereafter, the Court granted defendant’s request for a brief continuance to oppose

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plaintiff’s Motion for Summary Judgment so that counsel could engage in settlement

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discussions. [Doc. Nos. 17-18.] Without any further delay, counsel reached a settlement

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and filed a Joint Motion for Remand, which was granted in an Order filed on February 1,

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2021. [Doc. Nos. 19-20.] Despite the opportunity to do so, plaintiff has not opposed the

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Motion. Although the issues in the case were not particularly complex, a favorable result

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was not a certainty when counsel agreed to work on the case. As the 9th Circuit in

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acknowledged in Crawford v. Astrue, 586 F.3d at 1142, attorneys for disability claimants

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“assume significant risk in accepting these cases, including the risk that no benefits

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would be awarded . . . .” Id. at 1152. Even in successful cases such as this, where the

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plaintiff is ultimately awarded past due benefits following a remand, counsel may have to

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“wait[] a long, long time for payment.” Id. Here, counsel’s work on the case was

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completed in January of 2021 and past due benefits were not awarded until October 2022.

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Thus, all of these factors weigh in favor of counsel’s fee request.

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In support of the Motion, counsel submitted detailed billing records, which indicate

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that a total of 22.4 hours of attorney and paralegal time was spent on the case. [Doc. No.

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23-4, at pp. 1-2.] All of the time entries appear reasonable based on Court’s knowledge

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of the work that would have been necessary under the circumstances of the case.

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Dividing the requested fees by the number of hours expended results in an effective

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hourly rate of $1,339.29, which falls within the range of hourly rates charged by

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attorneys in other matters based on the Court’s own observations and according to the
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information provided by counsel in support of the Motion (i.e., Exhibits 5-13). See, e.g.,

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Marquita Marie Q. v. Kijakazi, Case No. 19cv128-KSC, 2022 WL 1138210, at 4 (S.D.

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Cal. Apr. 18, 2022), and cases cited therein.

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As mentioned above, plaintiff’s counsel was previously awarded EAJA fees of

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$4,300.00. “[A]n EAJA award offsets an award under Section 406(b).” Gisbrecht v.

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Barnhart, 535 U.S. at 796. See also Parrish v. Comm'r of Soc. Sec. Admin., 698 F.3d 1215,

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1218 (9th Cir. 2012) (“in order to maximize the award of past-due benefits to claimants

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and to avoid giving double compensation to attorneys, [the claimant’s counsel must] offset

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any fees received under § 406(b) with any award that the attorney receives under § 2412 if

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the two were for the ‘same work’”). Accordingly, plaintiff’s counsel must refund plaintiff

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the amount of the EAJA fees counsel was previously awarded in this action.

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Conclusion

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Based on the foregoing, plaintiff’s Motion for Attorney’s Fees pursuant to Title 42,

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United States Code, Section 406(b), is GRANTED in favor of plaintiff’s counsel at the

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Law Offices of Lawrence D. Rohlfing, Inc. [Doc. No. 23.] The Court finds that the request

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of plaintiff’s counsel for an award of fees in the amount of $30,000 is reasonable under the

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circumstances presented. However, plaintiff’s counsel is ordered to refund plaintiff for the

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EAJA fees previously awarded and received in this case in the amount of $4,300.00.

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IT IS SO ORDERED.
Dated: January 18, 2023

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