1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 BRYAN ROBERT MORRIESON, ) Case No.: 1:17-cv-0632- JLT ) 12 Plaintiff, ) ORDER GRANTING COUNSEL’S MOTION ) FOR ATTORNEY FEES PURSUANT TO 13 v. ) 42 U.S.C. § 406(b) ) 14 ANDREW M. SAUL1, ) (Doc. 23) Commissioner of Social Security, ) 15 ) Defendant. ) 16

17 Lawrence D. Rohlfing, counsel for Plaintiff Bryan Robert Morrison, seeks an award of attorney 18 fees pursuant to 42 U.S.C. § 406(b). (Doc. 23) Neither Plaintiff nor the Commissioner of Social 19 Security have opposed the motion. For the following reasons, the motion for attorney fees is 20 GRANTED. 21 I. Relevant Background 22 Plaintiff entered into a contingent fee agreement with Brian Shapiro, on behalf of the Law 23 Offices of Lawrence D. Rohlfing, on April 3, 2017. (Doc. 23-1) The agreement entitled counsel to an 24 award of “25% of the past due benefits” if judicial review of an administrative decision was required, 25 and the adverse decision of an ALJ was reversed. (Id. at 1) The agreement also required counsel to 26 “seek compensation under the Equal Access to Justice Act,” and the amount awarded would be credited 27 1 This action was originally brought against Nancy A. Berryhill in her capacity as then-Acting Commissioner. 28 (See Doc. 1) Andrew M. Saul, who is now the Commissioner, has been automatically substituted as the defendant in this 1 to Plaintiff “for fees otherwise payable for court work.” (Id.) 2 On May 5, 2017, Plaintiff filed a complaint for review of the administrative decision denying 3 his application for Social Security benefits. (Doc. 1) The Court found the ALJ erred in evaluating the 4 Plaintiff’s residual functional capacity and failing to address an apparent conflict between vocational 5 resources. (Doc. 19 at 6-7) In addition, the ALJ failed to resolve a conflict between the testimony of a 6 vocational expert and the Dictionary of Occupational Titles. (Id. at 7-10) Thus, the Court remanded 7 the matter for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g). (Id. at 12) 8 Following the entry of judgment in Plaintiff’s favor (Doc. 20), the Court awarded $4,300 in attorney 9 fees pursuant to the Equal Access to Justice Act. (Doc. 22 at 1) 10 Upon remand, the administration issued a favorable decision, finding Plaintiff disabled 11 beginning May 1, 2013. (Doc. 23-2 at 2) The Social Security Administration determined Plaintiff was 12 entitled to benefits beginning October 2013. (Id. at 1) In total, Plaintiff was entitled to $106,446.00 in 13 past-due benefits, from which the Commissioner withheld $26,611.50 for payment of Plaintiff’s 14 attorney’s fees. (Id. at 2; Doc. 23 at 4) 15 Mr. Rohlfing filed the motion now before the Court on April 16, 2020, seeking a portion of the 16 fees, in the amount of $20,600.00. (Doc. 23) Mr. Rohlfing indicated he should also be directed to 17 reimburse Plaintiff the amount of fees previously awarded under the EAJA. (Id. at 3) Plaintiff was 18 served with the motion and informed of the right to file a response to indicate whether he agreed or 19 disagreed with the requested fees within fourteen days. (Id. at 2, 13) To date, Plaintiff has not opposed 20 the motion. 21 II. Attorney Fees under § 406(b) 22 An attorney may seek an award of fees for representation of a Social Security claimant who is 23 awarded benefits: 24 Whenever a court renders a judgment favorable to a claimant under [42 USC § 401, et seq] who was represented before the court by an attorney, the court may determine 25 and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is 26 entitled by reason of such judgment. . . .

27 42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) 28 controls fees awarded for representation of Social Security claimants). 1 A contingency fee agreement is unenforceable if it provides for fees exceeding the statutory 2 amount. Gisbrecht, 535 U.S. at 807 (“Congress has provided one boundary line: Agreements are 3 unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits.”). 4 III. Discussion and Analysis 5 District courts “have been deferential to the terms of contingency fee contracts § 406(b) cases.” 6 Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). However, the Court must review 7 contingent-fee arrangements “as an independent check, to assure that they yield reasonable results in 8 particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, the Court should consider “the character of 9 the representation and the results the representative achieved.” Id. at 808. In addition, the Court should 10 consider whether the attorney performed in a substandard manner or engaged in dilatory conduct or 11 excessive delays, and whether the fees are “excessively large in relation to the benefits received.” 12 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc). 13 Plaintiff entered into the contingent fee agreement in which he agreed to pay twenty-five 14 percent of any awarded past-due benefits. (Doc. 23-1 at 1) The Law Offices of Lawrence D. Rohlfing 15 accepted the risk of loss in the representation and expended a total of 34.36 hours while representing 16 Plaintiff before the District Court. (Id.; see also Doc. 23-3 at 1-2) Due to counsel’s work, the action 17 was remanded further proceedings, and Plaintiff received a favorable decision. For this, Mr. Rohlfing 18 requests a fee of $20,600.00. (Doc. 23 at 3) Because counsel intends to refund the $4,300.00 that was 19 previously paid under the EAJA, the net cost to Plaintiff is $16,300.00. (Id. at 10) Finally, although 20 served with the motion and informed of the right to oppose the fee request (Doc. 23 at 2, 13), Plaintiff 21 did not file oppose the request and thereby indicates his implicit belief that the total of the fee request is 22 reasonable. 23 Significantly, there is no indication that counsel performed in a substandard manner or engaged 24 in severe dilatory conduct. Plaintiff was able to secure a remand for payment of benefits following his 25 appeal, including an award of past-due benefits. Finally, the fees requested do not exceed twenty-five 26 percent maximum permitted under 42 U.S.C. §406(b), the amount withheld by the administration for 27 payment of fees, or the amount agreed upon by counsel and Plaintiff. (See Doc. 23-1) 28 /// 1 IV. Conclusion and Order 2 Based upon the tasks completed and results achieved following the remand for further 3 proceedings, the Court finds the fees sought by Mr. Rohlfing and the Law Offices of Lawrence D. 4 Rohlfing are reasonable. Accordingly, the Court ORDERS: 5 1. Counsel’s motion for attorney fees pursuant to 24 U.S.C. §406(b) in the amount of 6 $20,600.00 is GRANTED; 7 2. The Commissioner shall pay the amount directly to Counsel, the Law Offices of 8 Lawrence D. Rohlfing; and 9 3. Counsel SHALL refund $4,300.00 to Plaintiff Bryan Robert Morrison. 10 11 IT IS SO ORDERED.

12 Dated: May 11, 2020 /s/ Jennifer L. Thurston 13 UNITED STATES MAGISTRATE JUDGE

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