Radcliffe v. Saul

Filing 25

ORDER Granting 23 Unoppsed 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. (exs)

Case 3:20-cv-02431-KSC Document 25 Filed 01/18/23 PageID.1108 Page 1 of 6

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID MICHAEL R.,

Case No.: 20cv2431-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.] At the Court’s request, defendant filed a Response to

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plaintiff’s Motion and does not oppose the request for fees. [Doc. No. 24.] 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
Plaintiff filed an application for disability benefits on January 24, 2019. [Doc. No.

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8-5, at pp. 2-3.]

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administrative level on October 15, 2020. [Doc. No. 8-2, at pp. 2-4.] On November 17,

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2020, plaintiff entered into a representation agreement with the Law Offices of Lawrence

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D. Rohlfing, which filed the instant Motion. [Doc. No. 23-1, at p. 1.] On December 14,

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2020, plaintiff filed a Complaint in this Court seeking judicial review of the final decision

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Plaintiff’s claim for disability benefits was denied at the highest

of the Commissioner. [Doc. No. 1.]

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On July 22, 2021, plaintiff’s counsel filed a Motion for Summary Judgment. [Doc.

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No. 12.] Shortly thereafter, on August 3, 2021, the parties filed a Joint Motion for Remand

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[Doc. No. 13], which was granted in an Order filed on August 16, 2021. [Doc. No. 14].

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Thereafter, plaintiff filed a Motion for Attorney’s Fees pursuant to the Equal Access to

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Justice Act (the “EAJA”). [Doc. No. 16.] In an Order filed on March 16, 2022, plaintiff’s

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Motion was granted, and plaintiff’s counsel was awarded EAJA fees of $5,000.00. [Doc.

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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 $104,178.10. [Doc. No. 23-3, at pp. 1-2.] Plaintiff’s counsel now moves for

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approval of an award of attorney’s fees in the amount of $20,000, offset by the $5,000.00

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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 $104,178.10.2 [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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approval of a fee in the amount of $20,000, or approximately 19 percent, which is less

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

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In a letter dated October 6, 2020, plaintiff was advised by the Social Security
Administration that he would receive a check in the amount of $78,133.57 for past due
benefits and that 25 percent of his past due benefits in the amount of $26,044.53 were
withheld “in case we need to pay your lawyer.” [Doc. No. 23-3, at pp. 1-2.] Thus, the
full amount of past due benefits is $78,133.57 plus $26,044.53, which is $104,178.10.
[Doc. No. 23-3, at pp. 1-2.]
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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 met the deadlines in the case. As directed by the Court’s briefing Order,

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plaintiff’s counsel conferred with defense counsel and then filed a timely Status Report.

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[Doc. Nos. 9-11.] Plaintiff’s counsel then filed a timely Motion for Summary Judgment

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on plaintiff’s behalf. Shortly thereafter, defendant’s counsel agreed to settle the case

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without further briefing, so the parties filed a Joint Motion for Remand. Despite the

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opportunity to do so, plaintiff has not opposed the Motion. Although the issues in the

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case were not particularly complex, a favorable result was not a certainty when counsel

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agreed to work on the case. As the 9th Circuit acknowledged in Crawford v. Astrue, 586

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F.3d at 1142, attorneys for disability claimants “assume significant risk in accepting these

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cases, including the risk that no benefits would be awarded . . . .” Id. at 1152. Even in

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successful cases such as this, where the plaintiff is ultimately awarded past due benefits

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following a remand, counsel may have to “wait[] a long, long time for payment.” Id.

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Here, counsel’s work on the case was completed in July of 2021 and past due benefits

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were not awarded until October 2022. Thus, all of these factors weigh in favor of

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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 25.1 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 $796.80, which falls within the range of hourly rates charged by attorneys

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in other matters based on the Court’s own observations and according to the information

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provided by counsel in support of the Motion (i.e., Exhibits 5-13). See, e.g., Marquita

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

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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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$5,000.00. “[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 Law

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

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plaintiff’s counsel for an award of fees in the amount of $20,000 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 $5,000.00.

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IT IS SO ORDERED.
Dated: January 18, 2023

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