1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 LINDA MULLIGAN, Case No. 1:17-cv-1278-HBK 12 Plaintiff, ORDER GRANTING PLAINTIFF’S

PETITION FOR ATTORNEY’S FEES

13 v. (Doc. No. 25) 14 COMMISSIONER OF SOCIAL

SECURITY,

15 Defendant. 16 17 18 Monica Perales (“Counsel”) of the Law Offices of Lawrence D. Rohlfing, attorney for 19 Linda Mulligan (“Plaintiff”) moved on January 5, 2021 for attorneys’ fees pursuant to 42 U.S.C. 20 § 406(b). (Doc. No. 25). Plaintiff was served with the motion and told she had 14 days to object. 21 (Id. at 2). The Commissioner of Social Security filed a response to the motion. (Doc. No. 27). 22 Plaintiff has not filed an opposition to the motion as of the date on this order. (See docket). For 23 the reasons below, the Court grants the motion for attorney’s fees in the amount of $20,000.00, 24 subject to an offset of $5,716.00 in fees already awarded on May 6, 2019, pursuant to the Equal 25 Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). 26 I. BACKGROUND 27 Following oral argument on Plaintiff’s appeal, the Court entered a February 1, 2019 Order 28 1 reversing and remanding this action to the Commissioner to reevaluate Dr. Amneet Virk-Dulai’s 2 opinion considering the appropriate factors under 20 C.F.R. § 404.1527(c). (Doc. No. 20 at 3). 3 On May 2, 2019, Plaintiff filed a Stipulation for the Award of Attorney’s Fees and Expenses 4 pursuant to the EAJA and costs pursuant to 28 U.S.C. § 1920. (Doc. No. 23). On May 6, 2019, 5 the Court awarded Plaintiff’s counsel $5,716.00 in attorney’s fees and costs in the amount of 6 $400.00. (Doc. No. 24). 7 Plaintiff’s counsel now seeks additional fees under 42 U.S.C. § 406(b) from Plaintiff’s 8 past-due benefits. (Doc. No. 25). Specifically, Plaintiff’s counsel requests an award of 9 $20,000.00 and, upon receipt of the 406(b) fees, she will reimburse Plaintiff the EAJA fees in the 10 amount of $5,716.00. (Doc. No. 25 at 1). Counsel argues these fees are reasonable because the 11 contingency fee agreement, which Plaintiff signed, permits Counsel to retain a percentage of the 12 past-due benefits. The Commissioner filed a response in its role “resembling that of a trustee.” 13 (Doc. No. 27). The response was filed for purposes of providing an analysis on the fee request 14 but the Commissioner “takes no position of the reasonableness of the request.” (Id. at 3). 15 II. APPLICABLE LAW 16 Title 42 U.S.C. 406(b) allows the Court to award counsel for successful claimant fees for 17 services performed before the Court. The fees awarded must be “reasonable” and must not be “in 18 excess of 25 percent of the total past-due benefits to which the claimant is entitled.” 42 U.S.C. § 19 406(b). The Supreme Court held that § 406(b) does not displace contingent-fee arrangements 20 between plaintiffs and their counsel, but rather “calls for court review of such arrangements as an 21 independent check, to assure that they yield reasonable results in particular cases.” Gisbrecht v. 22 Barnhart, 535 U.S. 789, 807 (2002). Because an attorney may not recover fees for services 23 performed under both EAJA and § 406(b), a claimant’s attorney seeking fees under both EAJA 24 and § 406(b) must reimburse the claimant the amount of the smaller fee received. Gisbrecht, 535 25 U.S. at 796. 26 In Gisbrecht, the Supreme Court set forth the factors courts should consider to determine 27 the appropriate award of attorney’s fees. Courts must first turn to the contingent-fee agreement 28 and determine whether it is reasonable. 535 U.S. at 808. Courts next must assess whether the 1 attorney is responsible for any delay in which accumulation of benefits from such would result in 2 an unjust award of fees to the attorney. Id. Finally, courts must assess the overall benefits 3 awarded to the claimant compared to the number of hours spent by the attorney in representation 4 of the claimant. Id. 5 Fees in social security cases “are usually set in contingency-fee agreements and are 6 payable from past-due benefits awarded to the claimant.” Biggerstaff v. Saul, 840 F. App'x 69, 70 7 (9th Cir. 2020). The fee is not borne by the Commissioner. Crawford v. Astrue, 586 F.3d 1142, 8 1147 (9th Cir. 2009). This provision’s purpose is in part to “ensure that attorneys representing 9 successful claimants would not risk nonpayment of [appropriate] fees.” Gisbrechtt, 535 U.S. at 10 805 (internal quotations omitted). When weighing the adequacy of requested attorney’s fees, 11 Courts should respect “the primacy of lawful attorney-client fee agreements.” Id. at 793. 12 Counsel still bears the burden, however, of showing the requested fees are reasonable. Id. at 807. 13 In determining reasonableness, the court may consider the experience of the attorney, the results 14 they achieved, and whether there is evidence the attorney artificially increased the hours worked 15 or the hourly rate charged. Id. at 807-808; Crawford, 586 F.3d at 1151. Any § 406(b) award is 16 offset by attorney fees granted under the EAJA. Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 17 1215, 1219 (9th Cir. 2012). 18 III. ANALYSIS 19 Here, Plaintiff signed a fee agreement providing that Counsel “shall receive 25% of 20 backpay awarded to Plaintiff.” (Doc. No. 25-1, “Agreement”). The Agreement is consistent with 21 42 U.S.C. § 406(b)(1)(A) insofar as it allows a fee of up to, but not in excess of 25% of the past- 22 due benefits. Counsel was successful in securing benefits in the amounts of $70,084.00 in 23 retroactive Title II benefits and $35,846.00 in retroactive auxiliary benefits, totaling $105,930.00 24 in past-due benefits. (Doc. No. 25 at 1). Supporting the motion, Counsel submits a timesheet 25 showing they expended 29.4 hours of work (26.1 hours attorney time, 3.3 hours of paralegal 26 time). (Id. at 6, 16, 19). The time Counsel spent toward successfully attaining Plaintiff’s benefits 27 does not appear inflated. Nor do any facts suggest Counsel was responsible for undue delay in 28 the case. 1 The fees Counsel seeks are reasonable in comparison to the amount of time Counsel spent 2 1 onthe case. After the reimbursement of the $5,716.00 EAJA fee, the net cost to Plaintiff from 3 | her past-due benefits received would total $14,284.00. (/d. at 10). Thus, Counsel seeks an award 4 | of fees totaling approximately 19% of Plaintiff's past-due benefits received, well below the 5 | amount stipulated to in the contingency agreement. Counsel’s hourly rate equals $485.00. In 6 | 2008, the Ninth Circuit found similar hourly rates reasonable in social security contingency fee 7 | arrangements. Crawford, 586 F.3d at 1153 (explaining that the majority opinion found 8 | reasonable effective hourly rates equaling $519.00, $875.00, and $902.00) (J. Clifton, concurring 9 | in part and dissenting in part). More recently, this Court approved an hourly rate of $1,025.22 for 10 || paralegal and attorney time. Mayfield v. Comm’r of Soc. Sec., No. 1:16-cv-01084-SAB, Doc. No. 11 } 24, at 5 (E.D. Cal. March 19, 2020). The Gisbrecht factors weigh in favor of finding the 12 || requested $ 20,000.00 fee to be reasonable. 13 Upon consideration of Counsel’s hours expended and the relevant factors, the Court finds 14 | the fees requested by Plaintiff's counsel reasonable. Therefore, the Court determines an award of 15 || $20,000.00 is reasonable. 16 Accordingly, it is ORDERED: 17 1. Plaintiffs uncontested Petition for Reasonable Attorney’s Fees pursuant to 42 U.S.C. § 18 | 406(b) (Doc. No. 25) is GRANTED. 19 2. Plaintiff's counsel is awarded § 406(b) fees in the amount of $20,000.00, subject to 20 | Counsel’s reimbursement of the EAJA fee in the amount of $5,716.00 to Plaintiff. 21

IT IS SO ORDERED.

pated: June 29, 2021 Mihaw. fares Back 24 HELENA M. BARCH-KUCHTA

UNITED STATES MAGISTRATE JUDGE

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