1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KATHARINE T., Case No.: 22-cv-396-KSC

12 Plaintiff,

ORDER DENYING MOTION FOR

13 v. ATTORNEYS’ FEES [Doc. No. 16] 14 MARTIN O’MALLEY, 15 Defendant. 16 17 (I) Introduction 18 Attorney Matty Sandoval, who represented plaintiff before this Court and before the 19 agency upon remand, moves for an award of attorneys’ fees in the amount of $15,000. See 20 Doc. No. 16. Counsel’s Motion includes a declaration from plaintiff stating she does not 21 oppose the fee request, even though it will reduce her overall benefits. See Doc. No. 16-4. 22 Defendant filed a response neither supporting nor opposing the request for fees. Doc. No. 23 18. 24 (II) Analysis of the Fee Request 25 This Court may “allow” a reasonable attorney’s fee “not in excess of 25 percent of” 26 any past due benefits awarded claimant. See 42 U.S.C. 405(b)(1)(A); Crawford v. Astrue, 27 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc). “In contrast to fees awarded under fee- 28 shifting provisions such as 42 U.S.C. § 1988, the fee is paid by the claimant out of the past- 1 due benefits awarded; the losing party is not responsible for payment.” Crawford, 586 F.3d 2 at 1147 (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). A court reviewing a 3 request for attorneys’ fees must first for look at the fee agreement between the social 4 security claimant and counsel, then test the fee for reasonableness. See Gisbrecht, 535 U.S. 5 at 808; Crawford, 586 F.3d at 1148. The Court will address both steps. 6 (A) Whether the Fee Agreement Allows for a Fee Award 7 Courts “look[] first” to the contingent fee agreement between plaintiff and counsel 8 to determine whether a fee award is appropriate. See Crawford v. Astrue, 586 F.3d 1142, 9 1148 (9th Cir. 2009). The fee agreement between plaintiff and her counsel in this case 10 states plaintiff shall “pay [counsel] a fee equal to 25 percent of any past-due benefits . . . 11 or, if less, $7,200.” Doc. No. 16-3 at 1. The agreement further states any fee for collecting 12 past due SSDI benefits “may not exceed the lesser of 25% of the combined past due benefits 13 . . . or, if less, $7,200.” Id. By its plain language, this fee agreement caps the fees counsel 14 can charge at $7,200. Counsel’s fee motion states he has already been paid $7,200 for his 15 representation, but the Administration is withholding $25,083.50 pending a determination 16 of counsel’s fee motion before this Court. Doc. No. 16 at 2.1 If this Court authorized the 17 further disbursement of fees, it would exceed the fees counsel may permissibly charge his 18 client under the contract between them. Thus, the Court concludes there is no contractual 19 basis for approving any further fee award. Moreover, as the Court will explain, the issue 20 of whether a further fee award would be reasonable remains. 21 //// 22 23 24 1 The administration originally withheld $32,283.50 from plaintiff’s past due benefits 25 award. See Doc. No. 16-1 at 4. Counsel received a fee award of $7,200 for his work before the Social Security Administration. See Doc. No. 16-5. Counsel has also moved for the 26 Commissioner to increase his administrative fee award by $4,800. See Doc. No. 16-2. The 27 Court is unaware of the status of that request. The $25,083.50 still being withheld represents the difference between the amount initially withheld and the fee award already 28 1 (B) Whether Counsel’s Fee Would be Reasonable Under Gisbrecht 2 “A fee resulting from a contingent-fee agreement is unreasonable, and thus subject 3 to reduction by the court, if the attorney provided substandard representation or engaged 4 in dilatory conduct in order to increase the accrued amount of past-due benefits, or if the 5 ‘benefits are large in comparison to the amount of time counsel spent on the case.’” 6 Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (quoting Gisbrecht v. Barnhart, 7 535 U.S. 789, 808)). In terms of assessing “substandard representation,” the Supreme Court 8 adopted the reasoning of the Sixth Circuit in Lewis v. Secretary of Health and Human 9 Services, 707 F.2d 246 (6th Cir. 1983). See Gisbrecht, 535 U.S. at 808. This Court will, 10 accordingly, follow Lewis because the Supreme Court determined it was correctly decided. 11 In Lewis, the Court ruled the plaintiff’s attorney provided substandard representation by 12 producing unhelpful briefing and overbilling his client. See 707 F.3d at 248-50. The Court 13 will accordingly analyze the quality of counsel’s representation and the potential for 14 overbilling in this case. 15 (1) Whether Counsel Provided Substandard Representation 16 Providing briefing that fails to address the material legal issues in the case constitutes 17 substandard representation. See Lewis, 707 F.3d at 248-50. The Court finds Lewis to be on 18 point here. Counsel’s first effort at submitting a brief in this case was so poorly formatted 19 that this Court struck the filing from the docket for its failure to conform to the Civil Local 20 Rules of this District. See Doc. Nos. 11, 12. Even after counsel made his brief legible, it 21 remained unhelpful. The material issue in this case was whether the ALJ properly evaluated 22 competing medical opinions to support a step-two non-severity finding. See Doc. No. 13 23 at 3-11. Plaintiff’s counsel briefed the entire issue under the wrong set of regulations and 24 failed to cite on-point, binding case law. Compare Doc. No. 13 at 5 with id. at 8-9. Given 25 the fact that this was a joint motion where defendant’s counsel expressly referenced the on- 26 point authority in the briefing [see Doc. No. 13 at 8-9], thereby putting plaintiff’s counsel 27 on notice prior to the time of filing that he was using overruled case law, counsel’s 28 continued reliance on the abrogated “treating source rule” [Doc. No. 13 at 5] was not only 1 completely unhelpful to the Court or his client, it arguably violated Federal Rule of Civil 2 Procedure 11 and California Rule of Professional Conduct 3.3 (which forbids attorneys 3 from failing to disclose contrary legal authority). The Court concludes this level of 4 representation is substandard. 5 (2) Whether Counsel Overbilled His Client 6 The Court will also consider counsel’s billing records, scrutinizing them for signs of 7 “overbilling” like that noted in Lewis. See 707 F.3d at 248-50. By way of example, counsel 8 billed two hours for preparing the Complaint in this matter. Doc. No. 16-2 at 1. But the 9 Complaint is three pages of boilerplate in which it appears counsel did nothing more than 10 insert some dates and names; a task which could not reasonably consume two hours of 11 attorney time. See Doc. No. 1. Counsel also billed two full hours to review the Court’s 12 Scheduling Order. Doc. No. 16-2 at 1. The Scheduling Order is only six pages long, which, 13 even if someone were reading slowly, should not take more than 15 minutes to fully digest. 14 See Doc. No. 8. Counsel billed eleven full hours for preparing and plaintiff’s portion of the 15 twelve-page Joint Motion for Judicial Review, and three full hours for “reviewing” the 16 Joint Motion prior to filing. Doc. No. 16-2 at 1. The argument portion of the Joint Motion 17 submitted by plaintiff’s counsel spans about two-and-a-half pages, and, as the Court has 18 already noted, relies on bad law. See Doc. No. 13 at 4-6. Thirteen hours to prepare and 19 review such an inadequate Motion is excessive. 20 Moving on, counsel charged a full hour of his time for reviewing the Court’s minute 21 entry striking the illegible Joint Motion, three full hours for reviewing the Court’s Order 22 on the Joint Motion, and another hour for receiving and reviewing the Clerk’s judgment. 23 See Doc. No. 16-2 at 1-2. But the docket entry striking the illegible joint motion is four 24 sentences, the Court’s dispositive Order is slightly less than twelve pages, and the judgment 25 in this matter is a single paragraph. See Doc. Nos. 12, 14, 15. The time billed for all of 26 these tasks was unreasonable. These excessive billing entries convince the Court that 27 counsel has systematically inflated his time on this matter, which, as in Lewis, justifies a 28 downward reduction in his fee sought. 1 All this is not to say that counsel should receive no fee for his work on this matter. 2 After all, plaintiff obtained benefits after the Court remanded the matter to the agency. But 3 the fact that plaintiff ultimately obtained a favorable determination from the agency on 4 remand does not change the Court’s analysis in this case. If a favorable result in which a 5 client obtains benefits after remand was in-and-of-itself sufficient to support a full 25% fee 6 award, the factors identified by the Supreme Court in Gisbrecht would be rendered 7 meaningless. See Dunnigan v. Astrue, CV 07-1645-AC, 2009 WL 6067058, 2009 U.S. 8 Dist. LEXIS 126078, at *36-37 (D. Ore. Dec. 23, 2009). Here, the reason plaintiff prevailed 9 in this Court was not because her attorney convinced this Court the ALJ erred, but because 10 defendant failed to defend a patently erroneous order by the ALJ. The Court notes counsel 11 has already been compensated to the tune of $7,200 for his work representing plaintiff 12 before the agency. See Doc. No. 16 at 2.2 The Court finds this ameliorates any potential 13 harshness or inequity in denying counsel a fee award in this case. Given the ineffectiveness 14 of counsel’s representation in this Court, even if counsel’s fee agreement permitted him to 15 recover more, any further fee award would be unreasonable under Gisbrecht. 16 (III) Conclusion 17 The Court, having reviewed the moving papers, concludes plaintiff’s counsel is not 18 entitled to recover more than $7,200 in fees under the agreement with his client, and he has 19 already been paid that much. Moreover, given the substandard quality of counsel’s 20 representation before this Court, any further fee award in this Court would be unreasonable. 21 The Motion for Attorneys’ Fees is DENIED on the basis of these two, independently 22 sufficient reasons. The Commissioner shall remit any withheld monies directly to plaintiff. 23 //// 24

25 2 Counsel may yet receive a greater fee because, at least at the time of filing this 26 Motion, he had a request pending for the Commissioner to increase his administrative fee 27 award by $4,800. See Doc. No. 16-2. The Court is unaware of whether that request has been granted, denied, or remains pending. Whatever the eventual result, the decision to 28 1 IT IS SO ORDERED 2 Dated: September 11, 2024 Mle. Lax, 3 Milf □□□ A Hori. Karen 8S. Crawford ; United States Magistrate Judge

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