1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 Case No.: 22-cv-1047-DTF 11 EDWARD R. FLORES,

12 Plaintiff, ORDER GRANTING MOTION FOR

ATTORNEY FEES PURSUANT TO

13 v. 42 U.S.C. § 406(b) 14 MARTIN O’MALLEY, Commissioner of Social Security, 15 [ECF No. 22] Defendant. 16

17 18 Currently before the Court is Plaintiff’s May 29, 2024, Motion for Attorney Fees 19 Pursuant to 42 U.S.C. § 406(b). ECF No. 22. For the reasons set forth below, Plaintiff’s 20 motion is GRANTED. 21 BACKGROUND 22 On July 19, 2022, Plaintiff filed a complaint against the Commissioner of Social 23 Security, seeking judicial review of the denial of his claim for benefits. ECF No. 1. 24 On February 13, 2023, the parties filed a Joint Motion for Voluntary Remand. ECF 25 No. 17. On February 28, 2023, the Court granted the parties’ motion. ECF No. 18. 26 On May 15, 2023, the parties filed a Joint Motion for the Award and Payment of 27 Attorney Fees and Expenses Pursuant to the Equal Access to Justice Act, 28 U.S.C. 28 § 2412(d) and Costs Pursuant to 28 U.S.C. § 1920. ECF No. 20. The Court granted the 1 parties’ motion on May 16, 2023, and awarded Plaintiff attorney’s fees and expenses in the 2 total amount of $2,807.38 and no costs, subject to the terms of the parties’ joint motion. 3 ECF No. 21. On remand, Plaintiff prevailed, and the Commissioner awarded Plaintiff 4 approximately $101,094.00 in past due Title II benefits. ECF No. 22 at 5; see also 5 Declaration of Matthew F. Holmberg (“Holmberg Decl.”) ECF No. 22 at 16 (“Exhibit 2”) 6 at ¶ ¶ 3-4. 7 On May 29, 2024, Plaintiff filed a Motion for Attorney Fees Pursuant to 42 U.S.C. 8 § 406(b). ECF No. 22. On June 17, 2024, the Parties consented to the jurisdiction of United 9 States Magistrate Judge D. Thomas Ferraro. ECF No. 27. The Court issued a briefing 10 schedule allowing the Plaintiff and the Commissioner to file a response to the Motion by 11 July 24, 2024. ECF No. 25. That time has passed and no party has filed a response. 12 PLAINTIFF’S MOTION 13 Plaintiff seeks an order from the Court awarding attorney fees pursuant to 42 U.S.C. 14 § 406(b) in the amount of $19,359.00 with a credit to Plaintiff for the EAJA fees previously 15 paid in the amount of $2,807.38. Mot. at 5. Plaintiff argues that the $19,359.00 request is 16 reasonable in light of the work performed and the results achieved. Id. at 6-13. Plaintiff 17 notes that his counsel spent 13.18 hours working the case before the District Court. Id. at 18 5; see also Holmberg Decl. at ¶ 5, ECF No. 22-4 (“Exhibit 4”). Plaintiff's counsel seeks 19 25% of the net payable past due benefits under the terms of the contingency fee agreement 20 ($19,359.00 based on the $101,094 judgment). Id. at 6-13; see also ECF No. 22-1 (“Exhibit 21 1”). Plaintiff notes that his counsel’s de facto hourly rate of $1,468.82 “does not amount to 22 a windfall as a matter of law.” Id. at 8. 23 LEGAL STANDARD 24 Pursuant to Section 406(b), “[w]henever a court renders a judgment favorable to a 25 [social security] claimant, ... the court may determine and allow as part of its judgment a 26 reasonable fee for such representation, not in excess of 25 percent of the total of the past- 27 due benefits.” 42 U.S.C. § 406(b)(1)(A). “Within the 25 percent boundary, ... the attorney 28 for the successful claimant must show that the fee sought is reasonable for the services 1 rendered.” Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). When contemplating a fee 2 motion under Section 406(b), the Court must first look to the contingency fee agreement 3 and then test for reasonableness. See Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 4 2009). To determine reasonableness, the Court may consider “(1) the character of the 5 representation; (2) the results achieved; (3) whether the attorney engaged in dilatory 6 conduct; (4) whether the benefits are large in comparison to the amount of time counsel 7 spent on the case; and (5) the attorney's record of hours worked and counsel's regular hourly 8 billing charge for non-contingent cases.” Barry H. v. Kijakazi, 2023 WL 5985501, at *1 9 (S.D. Cal., Sept. 13, 2023) (quoting Avina v. Saul, 2021 WL 2662309, at *1 (S.D. Cal. June 10 29, 2021)). The Court should also consider whether inferior representation justifies an 11 award of less than 25% such as “any delay in the proceedings attributable to the attorney 12 requesting the fee; whether the benefits of the representation are out of proportion to time 13 spent on the case; and the risk counsel assumed by accepting the case.” Bartle v. Kijakazi, 14 2023 WL 5811845, at *1–2 (S.D. Cal., Sept. 7, 2023) (citing Crawford, 586 F.3d at 1151– 15 52) (citing Gisbrecht, 535 U.S. at 789)). 16 When an attorney receives EAJA fees and 406(b) fees for the same work, he or she 17 must refund the smaller award to his or her client. See Gisbrecht, 535 U.S. at 789. 18 ANALYSIS 19 The Court finds that Plaintiff's fee request is reasonable. On July 7, 2022, Plaintiff 20 entered into a Social Security Representation Agreement with counsel wherein he agreed 21 that “the fee for successful prosecution of this matter is 25% of the past due benefits 22 awarded upon reversal of any unfavorable ALJ decision for work before the court.” Cho 23 Decl. at Exhibit 2. Accordingly, the contingency fee agreement is within the statutory 24 ceiling. See 42 U.S.C. § 406(b)(1)(A). Because there is no evidence of “fraud or 25 overreaching” in the negotiation of the Representation Agreement and because the fee 26 agreement is within the statutory ceiling, the Court looks to the character of the 27 representation and the results achieved to determine reasonableness. Crawford, 586 F.3d 28 at 1145; see also Gisbrecht, 535 U.S. at 808. 1 Plaintiff’s counsel did not render substandard representation or delay litigation. See 2 Crawford, 586 F.3d at 1151–52. On February 13, 2023, the parties filed a Joint Motion for 3 Voluntary Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g) and Entry of 4 Judgment. ECF No. 17. The district court later granted the joint motion. ECF No. 18. On 5 remand, Plaintiff’s counsel achieved a fully favorable decision for his client and Plaintiff 6 was granted $101,094 in retroactive disability benefits. Holmberg Decl. at ¶ ¶ 3-4, Exhibits 7 2-3. This is a successful result for Plaintiff that would not have been achieved with a 8 substandard performance by his counsel. 9 The Court notes that counsel’s de facto hourly rate of $1,468.821 is on the higher 10 end, however, several cases have found rates of $1300 - $1600 to be appropriate, including 11 cases in this district. See Roland S. v. Kijakazi, 2023 WL 6966153, at *3 (S.D. Cal., Oct. 12 20, 2023) (“[t]he de facto hourly rate is thus $1,438.35, which—although high, as discussed 13 in further detail below—is in line with hourly rates approved by courts in similar cases, 14 including in this district.”) (citing Desiree D. v. Saul, 2021 WL 1564331, at *3 (S.D. Cal. 15 Apr. 20, 2021) (approving a de facto hourly rate of $1,494.34); Martinez v. Saul, 2019 WL 16 3322481, at *2 (S.D. Cal. July 24, 2019) (approving a de facto hourly rate of $1,488.83); 17 and Reddick v. Berryhill, 2019 WL 2330895, at *2 (S.D. Cal. May 30, 2019) (approving a 18 de facto hourly rate of $1,990 upon reconsideration after previously reducing the fee award 19 to an effective hourly rate of $1,080.26). Plaintiff’s counsel spent a reasonable amount of 20 time – 13.18 hours of attorney and paralegal time - working on this matter to achieve a 21 successful result. Holmberg Decl. at ¶ 5; Exhibit 4. Counsel has submitted a detailed billing 22 statement in support of the requested fee that the Court has reviewed. Id. There is nothing 23 in the billing statement showing “substandard performance, delay, or benefits that are not 24 in proportion to the time spent on the case.” Crawford, 586 F.3d at 1151–52. There is also 25 no evidence or indication that Plaintiff’s counsel’s work was inferior, that he engaged in 26

27 1 The hourly rate is calculated by dividing the $ 19,095.00 fee requested by 20.6 hours 28 1 || dilatory conduct, or that he delayed the proceedings to potentially incur more fees. 2 || Accordingly, none of the factors the Court considers for reasonableness favor reducing the 3 || fee award. 4 In further support of its finding, the Court notes that taking Plaintiff's case on a 5 || contingency basis created a substantial risk for Plaintiff's counsel of not recovering any 6 |/attorney’s fees. Plaintiff already had a negative decision from the ALJ when he sought 7 ||review in this Court. While the hourly rate is high, the amount of the fees requested does 8 ||not exceed the 25 percent statutory cap, Plaintiff filed no objection to the request, and 9 counsel achieved excellent results for his client. 10 CONCLUSION 11 Plaintiff's counsel bore the risk of a contingency fee arrangement, successfully got 12 ||the matter remanded, received an order for retroactive benefits of $101,094.00 for his 13 ||/client, and seeks 25% of the past due benefits. Accordingly, the Court finds that a 14 ||downward adjustment of the requested fee is not appropriate, and GRANTS Plaintiffs 15 || motion for fees pursuant to 42 U.S.C. § 406(b). The Court awards Law Offices of Lawrence 16 || D. Rohlfing, Inc., CPC attorney fees in the amount of $19,359.00. The Court orders Law 17 || Offices of Lawrence D. Rohlfing, Inc., CPC to reimburse Edward R. Flores the amount of 18 || $2,807.38.00 for EAJA fees previously received. 19 IT IS SO ORDERED.

94 || Dated: 8/12/2024 — CGE Hon. D. Thomas Ferraro 22 United States Magistrate Judge 23 24 25 26 27 28