1 2 3 4 5 6 7 10 11 JOEL L., Case No.: 3:23-cv-02140-AHG 12 Plaintiff, ORDER GRANTING PLAINTIFF’S COUNSEL’S MOTION FOR 13 v. ATTORNEY FEES PURSUANT TO 14 FRANK BISIGNANO, Commissioner of 42 U.S.C. § 406(B) Social Security,1 15 [ECF No. 22] Defendant. 16
17 Before the Court is Plaintiff’s counsel’s motion for attorney fees pursuant to 42 18 U.S.C. § 406(b). ECF No. 22. For the reasons set forth below, the Court GRANTS the 19 motion. 20 I. BACKGROUND 21 Plaintiff Joel L. (“Plaintiff”) filed this action on November 21, 2023, seeking review 22 of the Commissioner of Social Security’s (“Commissioner”) denial of his application for 23 disability insurance benefits. ECF No. 1. The parties consented to proceed before a 24 Magistrate Judge on November 27, 2023. ECF No. 5. Pursuant to the Court’s Scheduling 25 Order, the parties filed a Joint Motion for Judicial Review on July 1, 2024, stating their 26 27 28 1 1 positions on the disputed issues in the case. ECF No. 15. On March 27, 2025, the Court 2 reversed the Commissioner’s denial of disability insurance benefits and remanded to the 3 Administrative Law Judge (“ALJ”) for an immediate calculation of benefits. ECF Nos. 17, 4 18. On remand, the Commissioner awarded Plaintiff $82,722.00 in total past due benefits. 5 ECF No. 22 at 3. On May 19, 2025, pursuant to a joint motion, this Court awarded Plaintiff 6 $6,579.35 in attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 7 2412(d). ECFs No. 20, 21. 8 In the instant motion, Plaintiff’s counsel seeks an order awarding Lawrence D. 9 Rohlfing, Esq. (Plaintiff’s counsel) attorney fees in the amount of $20,680.75 for 10 representing Plaintiff in this action, and further ordering Mr. Rohlfing to reimburse 11 Plaintiff the amount of $6,579.35 for the EAJA fees awarded by the Court. ECF No. 22 at 12 3. The Commissioner has taken no position on the reasonableness of counsel’s request. 13 Though he was notified regarding his ability to oppose the motion (see ECF No. 22 at 2), 14 Plaintiff has taken no position on the reasonableness of counsel’s request. 16 “Under 42 U.S.C. § 406(b), a court entering judgment in favor of [a social security] 17 claimant who was represented by an attorney ‘may determine and allow as part of its 18 judgment a reasonable fee for such representation, not in excess of 25 percent of the total 19 of the past-due benefits to which the claimant is entitled by reason of such judgment.’” 20 Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (quoting 42 U.S.C. 21 § 406(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney for the successful 22 claimant must show that the fee sought is reasonable2 for the services rendered.” Gisbrecht 23
24 25 2 The Court notes that the lodestar calculation does not apply to the instant motion. See Gisbrecht, 535 U.S. at 802 (explaining that the lodestar method is applicable to “disputes 26 over the amount of fees properly shifted to the loser in the litigation” whereas “Section 27 406(b) is of another genre: [i]t authorizes fees payable from the successful party’s recovery”); see also Crawford, 586 F.3d at 1148 (“SSDI attorney[] fees, in contrast, are 28 1 v. Barnhart, 535 U.S. 789, 807 (2002). 2 “[A] district court charged with determining a reasonable fee award under 3 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee agreements,’ . . . 4 ‘looking first to the contingent-fee agreement, then testing it for reasonableness[.]’” 5 Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). When determining 6 reasonableness of the fee award, courts must consider “whether the amount need be 7 reduced, not whether the loadstar amount should be enhanced.” Crawford, 586 F.3d at 8 1149. While there is not a definitive list of factors, courts should consider “the character of 9 the representation and the results the representative achieved.” Gisbrecht, 535 U.S. at 808. 10 “The court may properly reduce the fee for substandard performance, delay, or benefits 11 that are not in proportion to the time spent on the case.” Crawford, 586 F.3d at 1151. 12 Finally, “an EAJA award offsets an award under Section 406(b), so that the [amount 13 of the total past-due benefits the claimant actually receives] will be increased by the . . . 14 EAJA award up to the point the claimant receives 100 percent of the past-due benefits.” 15 Gisbrecht, 535 U.S. at 796. 17 On November 9, 2023, Plaintiff and the Law Offices of Lawrence D. Rohlfing 18 entered into a Social Security Representation Agreement (“Agreement”). ECF Nos. 22 at 19 13; 22-1. Pursuant to the Agreement, Plaintiff agreed to pay counsel a contingency-fee of 20 up to 25% of past-due benefits awarded by the Commissioner. ECF No. 22-1.3 The 21 22 up to 25% of past-due benefits, is based on the agreement between the attorney and the 23 client.”); see, e.g., Shultz v. Comm’r of Soc. Sec., No. 17cv1823-CAB-MDD, 2020 U.S. Dist. LEXIS 147006, at *3–*4 (S.D. Cal. Aug. 14, 2020) (not applying the lodestar 24 calculation, when the motion was not opposed by the Commissioner or plaintiff); Berry v. 25 Saul, No. 16cv1700-MMA-AGS, 2019 WL 6467807 at *2 n.2 (S.D. Cal. Dec. 2, 2019) (same). 26 3 As an initial matter, the Court notes that the contingency fee agreement between Plaintiff 27 and his counsel is within the statutory ceiling. Compare 42 U.S.C. § 406(b)(1)(A)) with ECF No. 22-1. 28 1 administrative proceedings became final on July 6, 2025, when the Social Security 2 Administration issued its Notice of Award. See ECF No. 22-2. Plaintiff’s counsel seeks a 3 total award of $20,680.75 in attorney fees and “bases this fee on 25% of the net payable 4 past due benefits.” ECF No. 22 at 3-4; 13; see ECF No. 22-2 at 3 (awarding Plaintiff 5 $82,722.00 in total past due benefits). Counsel argues that the amount sought in the instant 6 motion “falls within the range of reasonable,” considering counsel’s firm “expended or 7 supervised 27.15 hours before the District Court.” ECF No. 22 at 3. Additionally, if granted 8 by the Court, this award would then be further reduced by the $6,579.35 that has already 9 been received in attorney fees under the EAJA. Id. 10 Upon careful review of the documents submitted, and the applicable law, the Court 11 finds that counsel’s fee request is reasonable. Plaintiff’s counsel and his paralegal expended 12 27.15 hours on this case.4 ECF No. 22-3 at 1-2. The de facto hourly rate is $761.72,5 which 13 falls in line with the range that has been approved by courts in similar cases, including in 14 this district. See Crawford, 586 F.3d at 1153 (approving de facto hourly rates of $519, 15 $875, and $902 in 2009); Kikkert v. Berryhill, No. 14cv1725-MMA-JMA, 2018 WL 16 3617268, at *2 (S.D. Cal. July 30, 2018) (approving de facto hourly rate of $943.55); 17 Martinez v. Berryhill, No. 13-cv-272-JLS-JLB, 2017 WL 4700078, at *3 (S.D. Cal. Oct. 18 19, 2017) (approving de facto hourly rate of $886.52 and noting that “[w]hile such an 19 hourly rate is on the higher end charged for social security appeals, the Court nonetheless 20 concludes that the fee is reasonable in the present case”); Richardson v. Colvin, No. 15-cv- 21 1456-MMA-BLM, 2017 WL 1683062, at *2 (S.D. Cal.
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1 2 3 4 5 6 7 10 11 JOEL L., Case No.: 3:23-cv-02140-AHG 12 Plaintiff, ORDER GRANTING PLAINTIFF’S COUNSEL’S MOTION FOR 13 v. ATTORNEY FEES PURSUANT TO 14 FRANK BISIGNANO, Commissioner of 42 U.S.C. § 406(B) Social Security,1 15 [ECF No. 22] Defendant. 16
17 Before the Court is Plaintiff’s counsel’s motion for attorney fees pursuant to 42 18 U.S.C. § 406(b). ECF No. 22. For the reasons set forth below, the Court GRANTS the 19 motion. 20 I. BACKGROUND 21 Plaintiff Joel L. (“Plaintiff”) filed this action on November 21, 2023, seeking review 22 of the Commissioner of Social Security’s (“Commissioner”) denial of his application for 23 disability insurance benefits. ECF No. 1. The parties consented to proceed before a 24 Magistrate Judge on November 27, 2023. ECF No. 5. Pursuant to the Court’s Scheduling 25 Order, the parties filed a Joint Motion for Judicial Review on July 1, 2024, stating their 26 27 28 1 1 positions on the disputed issues in the case. ECF No. 15. On March 27, 2025, the Court 2 reversed the Commissioner’s denial of disability insurance benefits and remanded to the 3 Administrative Law Judge (“ALJ”) for an immediate calculation of benefits. ECF Nos. 17, 4 18. On remand, the Commissioner awarded Plaintiff $82,722.00 in total past due benefits. 5 ECF No. 22 at 3. On May 19, 2025, pursuant to a joint motion, this Court awarded Plaintiff 6 $6,579.35 in attorney fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 7 2412(d). ECFs No. 20, 21. 8 In the instant motion, Plaintiff’s counsel seeks an order awarding Lawrence D. 9 Rohlfing, Esq. (Plaintiff’s counsel) attorney fees in the amount of $20,680.75 for 10 representing Plaintiff in this action, and further ordering Mr. Rohlfing to reimburse 11 Plaintiff the amount of $6,579.35 for the EAJA fees awarded by the Court. ECF No. 22 at 12 3. The Commissioner has taken no position on the reasonableness of counsel’s request. 13 Though he was notified regarding his ability to oppose the motion (see ECF No. 22 at 2), 14 Plaintiff has taken no position on the reasonableness of counsel’s request. 16 “Under 42 U.S.C. § 406(b), a court entering judgment in favor of [a social security] 17 claimant who was represented by an attorney ‘may determine and allow as part of its 18 judgment a reasonable fee for such representation, not in excess of 25 percent of the total 19 of the past-due benefits to which the claimant is entitled by reason of such judgment.’” 20 Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (quoting 42 U.S.C. 21 § 406(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney for the successful 22 claimant must show that the fee sought is reasonable2 for the services rendered.” Gisbrecht 23
24 25 2 The Court notes that the lodestar calculation does not apply to the instant motion. See Gisbrecht, 535 U.S. at 802 (explaining that the lodestar method is applicable to “disputes 26 over the amount of fees properly shifted to the loser in the litigation” whereas “Section 27 406(b) is of another genre: [i]t authorizes fees payable from the successful party’s recovery”); see also Crawford, 586 F.3d at 1148 (“SSDI attorney[] fees, in contrast, are 28 1 v. Barnhart, 535 U.S. 789, 807 (2002). 2 “[A] district court charged with determining a reasonable fee award under 3 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee agreements,’ . . . 4 ‘looking first to the contingent-fee agreement, then testing it for reasonableness[.]’” 5 Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). When determining 6 reasonableness of the fee award, courts must consider “whether the amount need be 7 reduced, not whether the loadstar amount should be enhanced.” Crawford, 586 F.3d at 8 1149. While there is not a definitive list of factors, courts should consider “the character of 9 the representation and the results the representative achieved.” Gisbrecht, 535 U.S. at 808. 10 “The court may properly reduce the fee for substandard performance, delay, or benefits 11 that are not in proportion to the time spent on the case.” Crawford, 586 F.3d at 1151. 12 Finally, “an EAJA award offsets an award under Section 406(b), so that the [amount 13 of the total past-due benefits the claimant actually receives] will be increased by the . . . 14 EAJA award up to the point the claimant receives 100 percent of the past-due benefits.” 15 Gisbrecht, 535 U.S. at 796. 17 On November 9, 2023, Plaintiff and the Law Offices of Lawrence D. Rohlfing 18 entered into a Social Security Representation Agreement (“Agreement”). ECF Nos. 22 at 19 13; 22-1. Pursuant to the Agreement, Plaintiff agreed to pay counsel a contingency-fee of 20 up to 25% of past-due benefits awarded by the Commissioner. ECF No. 22-1.3 The 21 22 up to 25% of past-due benefits, is based on the agreement between the attorney and the 23 client.”); see, e.g., Shultz v. Comm’r of Soc. Sec., No. 17cv1823-CAB-MDD, 2020 U.S. Dist. LEXIS 147006, at *3–*4 (S.D. Cal. Aug. 14, 2020) (not applying the lodestar 24 calculation, when the motion was not opposed by the Commissioner or plaintiff); Berry v. 25 Saul, No. 16cv1700-MMA-AGS, 2019 WL 6467807 at *2 n.2 (S.D. Cal. Dec. 2, 2019) (same). 26 3 As an initial matter, the Court notes that the contingency fee agreement between Plaintiff 27 and his counsel is within the statutory ceiling. Compare 42 U.S.C. § 406(b)(1)(A)) with ECF No. 22-1. 28 1 administrative proceedings became final on July 6, 2025, when the Social Security 2 Administration issued its Notice of Award. See ECF No. 22-2. Plaintiff’s counsel seeks a 3 total award of $20,680.75 in attorney fees and “bases this fee on 25% of the net payable 4 past due benefits.” ECF No. 22 at 3-4; 13; see ECF No. 22-2 at 3 (awarding Plaintiff 5 $82,722.00 in total past due benefits). Counsel argues that the amount sought in the instant 6 motion “falls within the range of reasonable,” considering counsel’s firm “expended or 7 supervised 27.15 hours before the District Court.” ECF No. 22 at 3. Additionally, if granted 8 by the Court, this award would then be further reduced by the $6,579.35 that has already 9 been received in attorney fees under the EAJA. Id. 10 Upon careful review of the documents submitted, and the applicable law, the Court 11 finds that counsel’s fee request is reasonable. Plaintiff’s counsel and his paralegal expended 12 27.15 hours on this case.4 ECF No. 22-3 at 1-2. The de facto hourly rate is $761.72,5 which 13 falls in line with the range that has been approved by courts in similar cases, including in 14 this district. See Crawford, 586 F.3d at 1153 (approving de facto hourly rates of $519, 15 $875, and $902 in 2009); Kikkert v. Berryhill, No. 14cv1725-MMA-JMA, 2018 WL 16 3617268, at *2 (S.D. Cal. July 30, 2018) (approving de facto hourly rate of $943.55); 17 Martinez v. Berryhill, No. 13-cv-272-JLS-JLB, 2017 WL 4700078, at *3 (S.D. Cal. Oct. 18 19, 2017) (approving de facto hourly rate of $886.52 and noting that “[w]hile such an 19 hourly rate is on the higher end charged for social security appeals, the Court nonetheless 20 concludes that the fee is reasonable in the present case”); Richardson v. Colvin, No. 15-cv- 21 1456-MMA-BLM, 2017 WL 1683062, at *2 (S.D. Cal. May 2, 2017) (approving de facto 22 23 24 4 While every case is different, the amount of time spent on this case (23.6 hours by counsel 25 and 3.55 hours by counsel’s paralegal) is like the underlying cases approved in Crawford. 586 F.3d at 1145 (The time spent in the three underlying cases was: 19.5 hours by counsel 26 and 4.5 hours by paralegal in Crawford; 17.45 hours by counsel and 4.7 hours by paralegal 27 in Washington; and 26.9 hours by counsel and 2.6 hours by paralegal in Trejo). 5 The de facto hourly rate is calculated by dividing the $20,680.75 fee requested by 27.15 28 1 hourly rate of $770); Likens v. Colvin, No. 11-CV-0407-LAB-BGS, 2014 WL 6810657, at 2 *2 (S.D. Cal. Dec. 2, 2014) (approving de facto hourly rate of $666.68); Nash v. Colvin, 3 No. 12-cv-2781-GPC-RBB, 2014 WL 5801353, at *2 (S.D. Cal. Nov. 7, 2014) (approving 4 de facto hourly rate of $656); Sproul v. Astrue, No. 11-cv-1000-IEG-DHB, 2013 WL 5 394056, at *2 (S.D. Cal. Jan. 30, 2013) (approving de facto hourly rate of $800). 6 Moreover, “the Court finds that Plaintiff’s counsel assumed a substantial risk of not 7 recovering attorney[] fees. At the time that Plaintiff and his counsel signed the contingency 8 fee agreement, Plaintiff had an unfavorable ruling from the ALJ and had just filed this 9 action for judicial review.” Shultz, 2020 U.S. Dist. LEXIS 147006, at *5–6; see also 10 Moreno v. Berryhill, No. 13-cv-8492-PLA, 2018 WL 3490777, at *3 (C.D. Cal. July 19, 11 2018) (“[c]ounsel assumed the risk of nonpayment inherent in a contingency agreement, 12 [and] and the fee does not exceed … the 25 percent statutory cap[.]”). 13 Plaintiff’s counsel has also submitted a billing statement detailing the work 14 performed to litigate this case in federal court. ECF No. 22-3. There is nothing in the record 15 to suggest substandard performance by counsel, or that counsel delayed this litigation to 16 amass more in potential fees. As a result of counsel’s work, Plaintiff received a favorable 17 decision and a significant award of past-due benefits. Thus, none of the factors outlined in 18 Gisbrecht favor reducing the fee award, and the Court concludes that counsel’s request for 19 attorney fees is reasonable and that it does not constitute a “windfall” to Plaintiff’s counsel. 20 See Gisbrecht, 535 U.S. at 808. 21 // 22 // 23 // 24 // 25 // 26 // 27 // 28 // 2 For the reasons set forth above, the Court GRANTS Plaintiff’s counsel’s motion for 3 || attorney fees pursuant to 42 U.S.C. §406(b). The Court AWARDS Lawrence D. Rohlfing, 4 || Esq. attorney fees in the amount of $20,680.75.° The Court HEREBY ORDERS Lawrence 5 ||D. Rohlfing, Esq. to reimburse Plaintiff Joel L. the amount of $6,579.35 for EAJA fees 6 || awarded by this Court. 8 ||Dated: August 5, 2025 9 10 _Abiomt. Xl Honorable Allison H. Goddard 11 United States Magistrate Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ® As such, the Court DIRECTS the Commissioner to certify the fee of $20,680.75 payable to Law Offices of Lawrence D. Rohlfing.