1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 OSCAR J.,1 Case No.: 20-cv-1432-AJB-BLM Plaintiff, 12 ORDER GRANTING MOTION FOR v. ATTORNEY’S FEES 13 FRANK J. BISIGNANO, Commissioner 14 (Doc. No. 29) of Social Security,2 15 Defendants. 16 17 18 Before the Court is a motion for attorney’s fees filed by Steven G. Rosales, counsel 19 for Plaintiff Oscar J. (“Plaintiff”). (Doc. No. 29.) Counsel moves for attorney’s fees 20 pursuant to 42 U.S.C. § 406(b) of the Social Security Act. The Commissioner of Social 21 Security (the “Commissioner”), “neither supports nor opposes” the requested fees. (Doc. 22 No. 31 at 2.) For the reasons set forth below, the Court GRANTS Counsel’s motion 23 for attorney’s fees. 24 25 26 1 Pursuant to Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security cases under 42 U.S.C. § 405(g)] will refer to any non-government parties by using only their first name and last initial.” 27 2 Frank Bisignano became the Commissioner of Social Security on May 6, 2025. Frank Bisignano may be substituted as the defendant in this action pursuant to 42 U.S.C. § 405(g). 28 1 I. BACKGROUND 2 On June 6, 2019, Plaintiff signed a contingency fee agreement retaining Rosales and 3 the Law Offices of Lawrence D. Rohlfing (“Rohlfing Firm”) to represent Plaintiff in 4 connection with his claim for social security disability insurance benefits. (Doc. Nos. 29 at 5 16; 29-1.) Plaintiff filed his complaint on July 24, 2020, seeking judicial review of the 6 Commissioner’s denial of his application for disability insurance benefits. (Doc. No. 1.) 7 The Commissioner filed the administrative record on May 6, 2021. (Doc. No. 16.) On 8 June 24, 2021, Plaintiff filed a motion for summary judgment. (Doc. No. 19.) On July 9, 9 2021, the Commissioner filed a cross-motion for summary judgement and opposition to 10 Plaintiff’s Motion. (Doc. No. 20.) On September 8, 2021, Plaintiff filed a notice of new 11 authority, to which the Court issued a briefing schedule. (Doc. Nos. 21; 22.) Plaintiff 12 and the Commissioner each filed briefs addressing the supplemental authority. (Doc. 13 Nos. 23; 24.) 14 On December 7, 2021, Magistrate Judge Barbara L. Major issued a Report and 15 Recommendation (“R&R”). (Doc. No. 25.). The R&R recommended granting Plaintiff’s 16 Motion for Summary Judgment, denying the Commissioner’s Cross-motion Summary 17 Judgment, and remanding the matter back to the Commissioner for further proceedings. 18 (Id.) The parties were instructed to file any written objections to the R&R by no later than 19 December 21, 2021, and replies no later than January 5, 2022. (Id.) Neither party filed an 20 objection. The Court adopted the magistrate judge’s R&R and remanded the case to back 21 to the Commissioner for further review pursuant to 42 U.S.C. § 405(g). (Doc. No. 26.) 22 The parties subsequently filed a joint motion for Plaintiff to be awarded attorney’s 23 fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. 24 § 2412(d), and costs pursuant to 28 U.S.C. § 1920. (Doc. No. 27.) The Court granted the 25 joint motion. (Doc. No. 28.) Subsequently, on remand, the Commissioner awarded Plaintiff 26 approximately $113,626.00 in retroactive social security benefits. (Doc. No. 29 at 5.) 27 On March 26, 2025, Rosales filed the instant motion pursuant to 42 U.S.C. § 406(b) 28 seeking attorney’s fees in the amount of $28,406.00, payable to the Rohlfing Firm. (Id.) 1 The Commissioner filed a response declining to take a stance on the motion but providing 2 brief analysis of the requested fee. (Doc. No. 31.) 3 II. LEGAL STANDARD 4 “Under 42 U.S.C. § 406(b), a court entering judgment in favor of [a social security] 5 claimant who was represented by an attorney ‘may determine and allow as part of its 6 judgment a reasonable fee for such representation, not in excess of 25 percent of the total 7 of the past-due benefits to which the claimant is entitled by reason of such judgment.’” 8 Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (quoting 9 § 406(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney for the successful 10 claimant must show that the fee sought is reasonable for the services rendered.” Gisbrecht 11 v. Barnhart, 535 U.S. 789, 807 (2002). 12 “[A] district court charged with determining a reasonable fee award under 13 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee agreements,’ . . . 14 ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 15 Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). When determining 16 reasonableness, the court must consider “whether the amount need be reduced, not whether 17 the loadstar amount should be enhanced.” Id. at 1149. While there is not a definitive list of 18 factors, courts should consider “the character of the representation and the results the 19 representative achieved.” Gisbrecht, 533 U.S. at 808. “The court may properly reduce the 20 fee for substandard performance, delay, or benefits that are not in proportion to the time 21 spent on the case.” Crawford, 586 F.3d at 1151. However, since Gisbrecht, “district courts 22 generally have been deferential to the terms of contingency fee contracts in § 406(b) cases, 23 accepting that the resulting de facto hourly rates may exceed those for non[-]contingency- 24 fee arrangements.” Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003). 25 Finally, any fee award under § 406 must be offset by any award of attorney’s fees granted 26 under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. 27 / / / 28 / / / 1 III. DISCUSSION 2 Counsel seeks payment of $28,406.00 in attorney’s fees and an order for the 3 Rohlfing Firm to reimburse Plaintiff $4,700.00 for the previously paid EAJA fees. (Doc. 4 No. 29 at 5.) Upon careful consideration of the fee agreement and testing it for 5 reasonableness, the Court finds that the requested fees are reasonable in light of the 6 particular circumstances of this case. (See Doc. No. 29-1.) See Gisbrecht, 535 U.S. at 807; 7 Crawford, 586 F.3d at 1149. 8 Counsel seeks 25% of the past due benefits paid or payable to Plaintiff. (Doc. Nos. 9 29; 29-1.) This request is within the statutory and contract-based maximum of 25% of past- 10 due benefits. (See id.) Moreover, nothing in the record suggests that there was any 11 overreaching by Plaintiff’s counsel in making the fee agreement or any impropriety in 12 representing Plaintiff. 13 Next, considering awards in other social security cases, the Court finds that 23.2 14 hours was a reasonable amount of time to expend for the successful litigation of this case. 15 (See id.) The Court also finds the effective hourly rate to be reasonable.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 OSCAR J.,1 Case No.: 20-cv-1432-AJB-BLM Plaintiff, 12 ORDER GRANTING MOTION FOR v. ATTORNEY’S FEES 13 FRANK J. BISIGNANO, Commissioner 14 (Doc. No. 29) of Social Security,2 15 Defendants. 16 17 18 Before the Court is a motion for attorney’s fees filed by Steven G. Rosales, counsel 19 for Plaintiff Oscar J. (“Plaintiff”). (Doc. No. 29.) Counsel moves for attorney’s fees 20 pursuant to 42 U.S.C. § 406(b) of the Social Security Act. The Commissioner of Social 21 Security (the “Commissioner”), “neither supports nor opposes” the requested fees. (Doc. 22 No. 31 at 2.) For the reasons set forth below, the Court GRANTS Counsel’s motion 23 for attorney’s fees. 24 25 26 1 Pursuant to Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security cases under 42 U.S.C. § 405(g)] will refer to any non-government parties by using only their first name and last initial.” 27 2 Frank Bisignano became the Commissioner of Social Security on May 6, 2025. Frank Bisignano may be substituted as the defendant in this action pursuant to 42 U.S.C. § 405(g). 28 1 I. BACKGROUND 2 On June 6, 2019, Plaintiff signed a contingency fee agreement retaining Rosales and 3 the Law Offices of Lawrence D. Rohlfing (“Rohlfing Firm”) to represent Plaintiff in 4 connection with his claim for social security disability insurance benefits. (Doc. Nos. 29 at 5 16; 29-1.) Plaintiff filed his complaint on July 24, 2020, seeking judicial review of the 6 Commissioner’s denial of his application for disability insurance benefits. (Doc. No. 1.) 7 The Commissioner filed the administrative record on May 6, 2021. (Doc. No. 16.) On 8 June 24, 2021, Plaintiff filed a motion for summary judgment. (Doc. No. 19.) On July 9, 9 2021, the Commissioner filed a cross-motion for summary judgement and opposition to 10 Plaintiff’s Motion. (Doc. No. 20.) On September 8, 2021, Plaintiff filed a notice of new 11 authority, to which the Court issued a briefing schedule. (Doc. Nos. 21; 22.) Plaintiff 12 and the Commissioner each filed briefs addressing the supplemental authority. (Doc. 13 Nos. 23; 24.) 14 On December 7, 2021, Magistrate Judge Barbara L. Major issued a Report and 15 Recommendation (“R&R”). (Doc. No. 25.). The R&R recommended granting Plaintiff’s 16 Motion for Summary Judgment, denying the Commissioner’s Cross-motion Summary 17 Judgment, and remanding the matter back to the Commissioner for further proceedings. 18 (Id.) The parties were instructed to file any written objections to the R&R by no later than 19 December 21, 2021, and replies no later than January 5, 2022. (Id.) Neither party filed an 20 objection. The Court adopted the magistrate judge’s R&R and remanded the case to back 21 to the Commissioner for further review pursuant to 42 U.S.C. § 405(g). (Doc. No. 26.) 22 The parties subsequently filed a joint motion for Plaintiff to be awarded attorney’s 23 fees and expenses pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. 24 § 2412(d), and costs pursuant to 28 U.S.C. § 1920. (Doc. No. 27.) The Court granted the 25 joint motion. (Doc. No. 28.) Subsequently, on remand, the Commissioner awarded Plaintiff 26 approximately $113,626.00 in retroactive social security benefits. (Doc. No. 29 at 5.) 27 On March 26, 2025, Rosales filed the instant motion pursuant to 42 U.S.C. § 406(b) 28 seeking attorney’s fees in the amount of $28,406.00, payable to the Rohlfing Firm. (Id.) 1 The Commissioner filed a response declining to take a stance on the motion but providing 2 brief analysis of the requested fee. (Doc. No. 31.) 3 II. LEGAL STANDARD 4 “Under 42 U.S.C. § 406(b), a court entering judgment in favor of [a social security] 5 claimant who was represented by an attorney ‘may determine and allow as part of its 6 judgment a reasonable fee for such representation, not in excess of 25 percent of the total 7 of the past-due benefits to which the claimant is entitled by reason of such judgment.’” 8 Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (quoting 9 § 406(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney for the successful 10 claimant must show that the fee sought is reasonable for the services rendered.” Gisbrecht 11 v. Barnhart, 535 U.S. 789, 807 (2002). 12 “[A] district court charged with determining a reasonable fee award under 13 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee agreements,’ . . . 14 ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 15 Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). When determining 16 reasonableness, the court must consider “whether the amount need be reduced, not whether 17 the loadstar amount should be enhanced.” Id. at 1149. While there is not a definitive list of 18 factors, courts should consider “the character of the representation and the results the 19 representative achieved.” Gisbrecht, 533 U.S. at 808. “The court may properly reduce the 20 fee for substandard performance, delay, or benefits that are not in proportion to the time 21 spent on the case.” Crawford, 586 F.3d at 1151. However, since Gisbrecht, “district courts 22 generally have been deferential to the terms of contingency fee contracts in § 406(b) cases, 23 accepting that the resulting de facto hourly rates may exceed those for non[-]contingency- 24 fee arrangements.” Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003). 25 Finally, any fee award under § 406 must be offset by any award of attorney’s fees granted 26 under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. 27 / / / 28 / / / 1 III. DISCUSSION 2 Counsel seeks payment of $28,406.00 in attorney’s fees and an order for the 3 Rohlfing Firm to reimburse Plaintiff $4,700.00 for the previously paid EAJA fees. (Doc. 4 No. 29 at 5.) Upon careful consideration of the fee agreement and testing it for 5 reasonableness, the Court finds that the requested fees are reasonable in light of the 6 particular circumstances of this case. (See Doc. No. 29-1.) See Gisbrecht, 535 U.S. at 807; 7 Crawford, 586 F.3d at 1149. 8 Counsel seeks 25% of the past due benefits paid or payable to Plaintiff. (Doc. Nos. 9 29; 29-1.) This request is within the statutory and contract-based maximum of 25% of past- 10 due benefits. (See id.) Moreover, nothing in the record suggests that there was any 11 overreaching by Plaintiff’s counsel in making the fee agreement or any impropriety in 12 representing Plaintiff. 13 Next, considering awards in other social security cases, the Court finds that 23.2 14 hours was a reasonable amount of time to expend for the successful litigation of this case. 15 (See id.) The Court also finds the effective hourly rate to be reasonable. Taking the total 16 amount of fees requested, $28,406.00, divided by the total number of hours spent by 17 counsel, establishes an effective hourly rate of approximately $1,224.37. Although his rate 18 is on the higher end, it is within the range of hourly rates approved by other courts in the 19 Ninth Circuit. See Kelly Kay M. v. O’Malley, No. 22-CV-01969-DDL, 2024 WL 4536462, 20 at *3 (S.D. Cal. Oct. 21, 2024) (finding an effective hourly rate of $1,923.07 reasonable); 21 Reddick v. Berryhill, No. 16-CV-00029-BTM-BLM, 2019 WL 2330895, at *1–2 (S.D. Cal. 22 May 30, 2019) (granting $43,000 in fees for 21.6 hours of work, which effectively is an 23 hourly rate of $1,990.74, on reconsideration); White v. Berryhill, 2017 WL 11634804, at *3 24 (C.D. Cal. July 7, 2017) (finding an effective hourly rate of $1,612 reasonable); Truett v. 25 Berryhill, No. 13-CV-02742-W-BLM, 2017 WL 3783892, at *2 (S.D. Cal. Aug. 31, 2017) 26 (accepting a “high hourly rate of $1,788.62”). 27 Finally, there is nothing in the record to suggest substandard performance, dilatory 28 conduct, or a disproportionate amount of time spent on this case relevant to the benefits at 1 stake. Counsel assumed the risk of nonpayment inherent in a contingency agreement, the 2 || fee does not exceed the 25 percent statutory cap, and counsel’s efforts ultimately proved 3 successful for Plaintiff. Finally, Plaintiff had an opportunity to oppose the motion but did 4 || not do so. Under the totality of the circumstances, a comparison of the benefits secured and 5 || the time Plaintiff’s counsel spent on the case does not suggest that the fee sought would 6 || represent a windfall to counsel. Accordingly, the Court finds the § 406(b) fee requested by 7 || counsel is reasonable in this case. 8 CONCLUSION 9 For the foregoing reasons, the Court GRANTS Plaintiffs counsel’s motion 10 || for attorney’s fees pursuant to 42 U.S.C. § 406(b) and APPROVES an award in the 11 |}amount of $28,406.00. The Court further ORDERS Plaintiff’s counsel to refund Plaintiff 12 ||$4,700.00 for the EAJA fees previously paid. 13 IT IS SO ORDERED. 14 || Dated: August 22, 2025 © ¢ 15 Hon. Anthony J.Battaglia 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28