1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARIE S., Case No. 20-cv-2196-MMA (BGS)

12 Plaintiff,

ORDER GRANTING MOTION FOR

13 v. ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(b) 14 MARTIN O’MALLEY, Commissioner of

Social Security, 15 [Doc. No. 29] Defendant. 16 17 18 19 Brian Shapiro, counsel for Plaintiff Marie S., moves for an award of attorney’s fees 20 pursuant to 42 U.S.C. § 406(b) in the amount of $18,000.00 from Plaintif’s recovery of 21 approximately $116,964.00 of past-due social security benefits, with a credit to Plaintiff 22 for the EAJA fees previously paid in the amount of $5,250. Doc. No. 29. Plaintiff has 23 not responded to Attorney Shapiro’s request, and the Social Security Commissioner (the 24 “Commissioner”) does not take a position on the reasonableness of the requested amount. 25 See Doc. No. 33. The Court found this matter suitable for determination on the papers 26 and without oral argument pursuant to Civil Local Rule 7.1.d.1. See Doc. No. 34. For 27 the reasons set forth below, the Court GRANTS the motion. 28 1 I. BACKGROUND 2 On November 10, 2020, Plaintiff filed this social security appeal challenging the 3 denial of her application for disability insurance benefits. See Doc. No. 1 ¶¶ 6–9. The 4 Court referred all matters arising in this social security appeal to the assigned Magistrate 5 Judge for report and recommendation (“R&R”) pursuant to 28 U.S.C. § 636(b)(1)(B) and 6 Civil Local Rule 72.1. See Doc. No. 6. On February 28, 2023, the Magistrate Judge 7 issued an R&R recommending that the Court remand the case for further administrative 8 action to determine whether Plaintiff is disabled. See Doc. No. 25. No Objections to the 9 R&R were filed, and so the Court adopted the R&R, granted Plaintiff’s motion for 10 summary judgment, and remanded the matter to the Social Security Administration for 11 further administrative proceedings consistent with the Court’s Order and the R&R. See 12 Doc. No. 26 at 1–2. Thereafter, pursuant to the parties’ stipulation, see Doc. No. 27, the 13 Court awarded Plaintiff attorney fees and expenses in the total amount of $5,250.00 14 under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d) and costs in the 15 amount of $400.00 under 28 U.S.C. § 1920, see Doc. No. 28. 16 On remand, the Commissioner awarded Plaintiff $116,964.00 in past-due benefits. 17 See Doc. No. 29-1 at 4. Now, pursuant to a contingency fee arrangement, Attorney 18 Shapiro requests that the Court order payment of attorney’s fees in the amount of 19 $18,000.00 and reimbursement of $5,250.00 to Plaintiff. Id. 20 II. LEGAL STANDARD 21 “Under 42 U.S.C. § 406(b), a court entering judgment in favor of [a social 22 security] claimant who was represented by an attorney ‘may determine and allow as part 23 of its judgment a reasonable fee for such representation, not in excess of 25 percent of the 24 total of the past-due benefits to which the claimant is entitled by reason of such 25 judgment.’” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (quoting 26 § 406(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney for the successful 27 28 1 claimant must show that the fee sought is reasonable for the services rendered.” 2 Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).1 3 “[A] district court charged with determining a reasonable fee award under 4 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee agreements,’ . . . 5 ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 6 Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). When 7 determining reasonableness, the court must consider “whether the amount need be 8 reduced, not whether the loadstar amount should be enhanced.” Id. at 1149. While there 9 is not a definitive list of factors, courts should consider “the character of the 10 representation and the results the representative achieved.” Gisbrecht, 535 U.S. at 808. 11 “The court may properly reduce the fee for substandard performance, delay, or benefits 12 that are not in proportion to the time spent on the case.” Crawford, 586 F.3d at 1151. 13 Finally, any fee award under § 406 must be offset by any award of attorney’s fees granted 14 under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. 15 III. DISCUSSION 16 In an agreement between Plaintiff and the Law Offices of Lawrence D. Rohlfing 17 dated October 20, 2020, Plaintiff agreed to pay counsel 25% of any past-due benefits 18 awarded by the Commissioner. See Doc. No. 29-2 (“Ex. 1”). The parties entered into 19 this agreement prior to initiating this action, and there is nothing in the record to suggest 20 the agreement was reached by improper means. Counsel for Plaintiff spent 24.5 hours 21 litigating this case in Court, resulting in this Court’s order granting Plaintiff summary 22 judgment and remanding the case for further administrative proceedings, which 23

24 25 1 The lodestar calculation does not apply to determine reasonableness of fees under § 406(b). Gisbrecht, 535 U.S. at 802 (explaining that the lodestar method is applicable to “disputes over the amount of fees 26 properly shifted to the loser in the litigation” whereas “Section 406(b) is of another genre: [i]t authorizes fees payable from the successful party’s recovery”); see also Crawford, 586 F.3d at 1148 (“SSDI 27 attorneys’ fees, in contract [with fees authorized pursuant to fee-shifting statutes], are not shifted. They are paid from the award of past-due benefits and the amount of the fee, up to 25% of past-due benefits, 28 1 ultimately resulted in a favorable decision on remand. See Doc. No. 29-1 ¶ 5 (“Shapiro 2 Decl.”). Plaintiff received an award of $116,964.00 in retroactive benefits. Shapiro 3 Decl. ¶ 4. Plaintiff’s counsel seeks $18,000.00 in attorney’s fees, which constitutes 4 approximately 16% of the past-due award and which is a proper amount under 5 § 406(b)(1)(A). 6 The Court further finds there is no proper basis to reduce the award, and it is 7 reasonable. There is nothing in the record to suggest substandard performance, delay, or 8 a disproportionate amount of time spent on this case relevant to the benefits at stake. To 9 the contrary, as a result of counsel’s work, Plaintiff received a highly favorable decision 10 and a significant award of past-due benefits. The effective hourly rate is approximately 11 $735.00, which is within the range of rates awarded by other courts. See Crawford, 586 12 F.3d at 1153 (approving effective hourly rates of $519, $875, and $902); see e.g., Likens 13 v. Colvin, No. 11CV0407-LAB (BGS), 2014 WL 6810657, at *2 (S.D. Cal. Dec. 2, 2014) 14 (effective hourly rate of $666.68 per hour); Nash v. Colvin, No. 12CV2781-GPC (RBB), 15 2014 WL 5801353, at *2 (S.D. Cal. Nov. 7, 2014) (effective hourly rate of $656 per 16 hour); Sproul v. Astrue, No. 11CV1000-IEG (DHB), 2013 WL 394053, at *2 (S.D. Cal. 17 Jan. 30 2013) (effective hourly rate of $800 per hour); Richardson v. Colvin, No. 15- 18 cv1456-MMA (BLM), 2017 WL 1683062, at *2 (S.D. Cal. May 2, 2017) (effective 19 hourly rate of $770 per hour). Thus, based on the character of counsel’s representation 20 and the favorable results achieved, the Court finds the requested fees in the amount of 21 $18,000 are reasonable. 22 IV. CONCLUSION 23 Based upon the foregoing, the Court GRANTS Plaintiff’s counsel’s motion for 24 attorney’s fees under 42 U.S.C. § 406(b) and APPROVES an award in the amount of 25 $18,000.00. Consistent with the Commissioner’s statement of position, see Doc. No. 33, 26 the Court declines to order the Commissioner to make this payment but rather DIRECTS 27 that any fees ultimately withheld for counsel be made payable to the Law Offices of 28 Lawrence D. Rohlfing, Inc., CPC as set forth in counsel’s motion. The Court further 1 || ORDERS Plaintiffs counsel to refund Plaintiff $5,250.00 in EAJA fees that counsel 2 || previously accepted for work. 3 IT IS SO ORDERED. 4 ||Dated: September 11, 2024

6 HON. MICHAEL M. ELLO 5 United States District Judge

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