1 2

3

4 5 6

UNITED STATES DISTRICT COURT

7

CENTRAL DISTRICT OF CALIFORNIA

8

9

10 BARTHOLOMEW W.,1 Case No. SACV 16-2214-KK

11 Plaintiff, 12 v. ORDER GRANTING MOTION FOR

ATTORNEY FEES PURSUANT TO 42

13 U.S.C. § 406(B) ANDREW SAUL,2 Commissioner of 14 Social Security,

15 Defendant.

16 17 18 I. 19 INTRODUCTION 20 Plaintiff Bartholomew W. (“Plaintiff”)’s counsel, Monica Perales of the Law 21 Offices of Lawrence D. Rohlfing (“Counsel”), filed a Motion for Attorney Fees 22 (“Motion”) pursuant to 42 U.S.C. § 406(b) (“Section 406(b)”). The Motion seeks an 23 award of $20,000.00 for representing Plaintiff in an action to obtain disability 24 insurance benefits with a refund to Plaintiff of $2,816.40 for the Equal Access to 25

26 1 Partially redacted in compliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case 27 Management of the Judicial Conference of the United States. 1 Justice Act (“EAJA”) fees previously awarded. The parties have consented to the 2 jurisdiction of the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. 3 § 636(c). For the reasons stated below, the Court GRANTS the Motion. 4 II. 5 RELEVANT BACKGROUND 6 On December 16, 2016, Plaintiff filed the Complaint in this action. See ECF 7 Docket No. (“Dkt.”) 1, Compl. Plaintiff alleged the Commissioner of the Social 8 Security Administration (“Defendant”) improperly denied Plaintiff’s applications for 9 Title II Disability Insurance Benefits (“DIB”) and Title XVI Supplemental Security 10 Income Benefits (“SSI”). Id. at 2. On September 25, 2017, the Court approved the 11 parties’ Stipulation to Voluntary Remand and remanded the action to Defendant for 12 further proceedings. Dkt. 23, Judgment. 13 On November 27, 2017, the Court issued an order approving the Parties’ 14 stipulation of EAJA fees to Counsel in the amount of $2,816.40. Dkt. 25, Order 15 Granting EAJA Fees. 16 On August 16, 2019, Counsel filed the instant Motion pursuant to Section 17 406(b) seeking the amount of $20,000.00 for representing Plaintiff in the underlying 18 proceedings before the Court. Dkt. 26, Mot. at 1. Counsel states she expended 15.4 19 hours of attorney and paralegal time on Plaintiff’s case. Dkt. 26 at 12-13, Declaration 20 of Monica Perales (“Perales Decl.”), ¶ 5, Ex. 4, Itemized Hours. Counsel seeks 21 compensation pursuant to a contingency fee agreement dated November 6, 2017 22 stating, “If this matter requires judicial review of any adverse decision of the Social 23 Security Administration, the fee for successful prosecution of this matter is a 24 separate 25% of the past due benefits awarded upon reversal of any 25 unfavorable ALJ decision for work before the court.” Perales Decl. ¶ 2, Ex. 1, 26 Contingency Fee Agreement (emphasis in original). Additionally, Counsel seeks an 27 order to “reimburse [Plaintiff] the amount of the $2,816.40 for EAJA fees previously 1 On August 19, 2019, Counsel served Plaintiff with the Motion and informed 2 him of his right to file a response to the Motion. Dkt. 26, Mot. at 2, 14. Plaintiff, 3 however, failed to respond. On August 28, 2019, Defendant filed a response to the 4 Motion stating Defendant “takes no position on the reasonableness of the request.” 5 Dkt. 27 at 5. Thus, the Court deems this matter submitted. 6 III. 7 DISCUSSION 8 A. APPLICABLE LAW 9 Pursuant to Section 406(b): 10 Whenever a court renders a judgment favorable to a claimant under this 11 subchapter who was represented before the court by an attorney, the 12 court may determine and allow as part of its judgment a reasonable fee 13 for such representation, not in excess of 25 percent of the total of the 14 past-due benefits to which the claimant is entitled by reason of such 15 judgment, and the Commissioner of Social Security may . . . certify the 16 amount of such fee for payment to such attorney out of, and not in 17 addition to, the amount of such past-due benefits. 18 42 U.S.C. § 406(b)(1)(A). Thus, “a prevailing [disability] claimant’s [attorney’s] fees 19 are payable only out of the benefits recovered; in amount, such fees may not exceed 20 25 percent of past-due benefits.” Gisbrecht v. Barnhart, 535 U.S. 789, 792, 122 S. Ct. 21 1817, 152 L. Ed. 2d 996 (2002). 22 Where a claimant entered into a contingent fee agreement with counsel, a court 23 must apply Section 406(b) “to control, not to displace, fee agreements between Social 24 Security benefits claimants and their counsel.” Id. at 793. A court should not use a 25 “lodestar method,” under which a district court “determines a reasonable fee by 26 multiplying the reasonable hourly rate by the number of hours reasonably expended 27 on the case.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (en banc). 1 agreement, courts that use the “lodestar” method as the starting point to determine 2 the reasonableness of fees requested under Section 406(b) improperly “reject the 3 primacy of lawful attorney-client fee agreements.” Gisbrecht, 535 U.S. at 793. Thus, 4 courts should not apply lodestar rules in cases where the claimant and counsel reached 5 a contingent fee agreement because: 6 [t]he lodestar method under-compensates attorneys for the risk they 7 assume in representing [social security] claimants and ordinarily produces 8 remarkably smaller fees than would be produced by starting with the 9 contingent-fee agreement. A district court’s use of the lodestar to 10 determine a reasonable fee thus ultimately works to the disadvantage of 11 [social security] claimants who need counsel to recover any past-due 12 benefits at all. 13 Crawford, 586 F.3d at 1149. 14 However, even in contingency fee cases, a court has “an affirmative duty to 15 assure that the reasonableness of the fee [asserted by counsel] is established.” Id. The 16 court must examine “whether the amount need be reduced, not whether the lodestar 17 amount should be enhanced.” Id. The court may consider factors such as the 18 character of the representation, the results achieved, the ratio between the amount of 19 any benefits awarded and the time expended, and any undue delay attributable to 20 counsel that caused an accumulation of back benefits in determining whether a lawful 21 contingent fee agreement is reasonable. See Gisbrecht, 535 U.S. at 808; Crawford, 22 586 F.3d at 1151. 23 B. ANALYSIS 24 Here, Counsel seeks a reasonable fee under Section 406(b). Plaintiff retained 25 Counsel to represent him in federal court in his appeal from the administrative denial 26 of benefits and agreed to pay Counsel a contingent fee of twenty-five percent of any 27 past due benefits obtained for work performed in court. See Perales Decl., Ex. 1, 1 Contingency Fee Agreement. Consideration of the factors set forth in Gisbrecht and 2 Crawford warrants no reduction of the fee Counsel seeks. 3 The record discloses no issue regarding the quality or efficiency of Counsel’s 4 representation before this Court, or any misconduct or delay by Counsel. Counsel 5 obtained a favorable outcome for Plaintiff, ultimately resulting in a remand for further 6 administrative proceedings and an award of past due benefits. See dkt. 23, Judgment; 7 Perales Decl., ¶ 4, Ex. 3, Notice of Award. Further, the time expended to litigate this 8 case was reasonable and within the approved range for social security disability cases. 9 See Patterson v. Apfel, 99 F. Supp. 2d 1212, 1214 & n.2 (C.D. Cal. 2000) (noting that 10 “a survey of several dozen cases in which attorney’s fees were awarded in social 11 security cases suggests that the 33.75 hours spent by plaintiff’s counsel falls within the 12 approved range”). 13 In addition, a fee of $20,000.00 based on 15.4 hours of attorney and paralegal 14 time is reasonable. See Perales Decl., Ex. 4, Itemized Hours. The Court finds 15 Counsel’s effective hourly rate of approximately $1,298.70, id., reasonable under the 16 circumstances. See Villa v. Astrue, No. CIV S-06-0846 GGH, 2010 WL 118454, at 17 *1-2 (E.D. Cal. Jan. 7, 2010) (approving Section 406(b) fees exceeding $1,000.00 per 18 hour, and noting “[r]educing [Section] 406(b) fees after Crawford is a dicey business”). 19 Further, post-Gisbrecht decisions have approved contingency fee agreements yielding 20 similar hourly rates to the rate Counsel seeks. See, e.g., Daniel v. Astrue, No. EDCV 21 04-01188-MAN, 2009 WL 1941632, at *2-3 (C.D. Cal. July 2, 2009) (approving fees 22 amounting to $1,491.25 per hour); see also Palos v. Colvin, No. CV 15-04261-DTB, 23 2016 WL 5110243, at *2 (C.D. Cal. Sept. 20, 2016) (finding “an hourly rate of 24 $1,546.39 for attorney and paralegal services” is reasonable). Hence, in light of the 25 hours Counsel expended, the Section 406(b) fee award amount Counsel requests 26 would not represent an unfair windfall to Counsel. 27 Finally, nothing in the record suggests any overreaching in the making of the 1 | Counsel assumed the risk of nonpayment inherent in a contingency agreement and 2 | Counsel’s efforts proved successful for Plaintiff. Accordingly, the Court finds the 3 | Section 406(b) fees Counsel requests reasonable. 4 IV. 5 ORDER 6 Based on the foregoing, IT IS HEREBY ORDERED: (1) Counsel’s Motion 7 | for Attorney Fees Pursuant to 42 U.S.C. § 406(b) is GRANTED; and (2) Defendant 8 | is directed to pay Counsel the sum of $20,000.00 with a reimbursement to Plaintiff for 9 | RAJA fees previously awarded in the amount of $2,816.40. 10 11 | Dated: September 16, 2019 MA- ™

12 Carly KTYA KATO United States Mag#trate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28