Monteith v. Commissioner of Social Security

N.D. California

Monteith v. Commissioner of Social Security

DecidedJune 15, 2021

Docket4:18-cv-04481

StatusUnknown

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Monteith v. Commissioner of Social Security, (N.D. Cal. 2021).

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 CINDY LAURAL MONTEITH, Case No. 18-cv-04481-DMR

9 Plaintiff, ORDER ON MOTION FOR 10 v. ATTORNEYS’ FEES

11 COMMISSIONER OF SOCIAL Re: Dkt. No. 31 SECURITY, 12 Defendant. 13 Plaintiff Cindy Monteith filed a complaint seeking to reverse the Commissioner of the Social 14 Security Administration’s administrative decision to deny her application for benefits under Title II 15 of the Social Security Act, 42 U.S.C. § 401 et seq. The court granted Plaintiff’s motion for summary 16 judgment and remanded the case for further proceedings. [Docket No. 26.] Following remand, an 17 Administrative Law Judge (“ALJ”) found that Plaintiff is disabled and entitled to past-due disability 18 benefits. Plaintiff’s counsel Lawrence Rohlfing now moves for an award of attorneys’ fees under 19 42 U.S.C. § 406(b). [Docket No. 31 (“Mot.”).] The Commissioner filed an analysis of the fee 20 request. [Docket No. 34 (“Response”).] 21 Having carefully considered the parties’ submissions, the court grants the motion. 22 I. BACKGROUND 23 Plaintiff applied for Social Security Disability Insurance (“SSDI”) benefits on October 9, 24 2014. Her application was initially denied on March 12, 2015 and again on reconsideration on June 25 17, 2015. Following a hearing, an ALJ issued a decision finding Plaintiff not disabled. After the 26 Appeals Council denied Plaintiff’s request for review, she appealed to this court. The court granted 27 Plaintiff’s motion for summary judgment and remanded the case for further proceedings. [Docket 1 No. 26.] On December 9, 2020, an ALJ issued a fully favorable decision. Mot. at 10-11, Declaration 2 of Lawrence Rohlfing (“Rohlfing Decl.”), Ex. 2. Plaintiff was awarded $54,286 in past-due 3 disability benefits.1 Response, Ex. A. 4 The retainer agreement between Plaintiff and Rohlfing permits Rohlfing to request an 5 attorneys’ fees award of up to 25% of any past-due benefits awarded. Rohlfing Decl., Ex. 1. 6 Rohlfing is requesting an award of attorneys’ fees in the amount of $8,173. Mot. at 3. Of this 7 amount, Plaintiff will be refunded $3,000 for the Equal Access to Justice Act (“EAJA”) fees this 8 court approved on April 29, 2020. See Docket No. 30. 9 The Commissioner does not oppose Rohlfing’s request for fees. Instead, he presents an 10 analysis of the requested fees in his role “resembling that of a trustee” for Plaintiff. See Response 11 at 2. 12 II. LEGAL STANDARD Under the Social Security Act, an attorney who successfully represents a claimant before a 13 court may seek an award of attorneys’ fees not to exceed 25 percent of any past-due benefits 14 eventually awarded. 42 U.S.C. § 406(b). While contingency fee agreements are permissible in 15 Social Security cases, section 406(b) “calls for court review of such arrangements as an independent 16 check, to assure that they yield reasonable results in particular cases.” Gisbrecht v. Barnhart, 535 17 U.S. 789, 807 (2002). In deciding whether a fee agreement is reasonable, courts must consider “the 18 character of the representation and the results the representative achieved.” Crawford v. Astrue, 586 19 F.3d 1142, 1151 (9th Cir. 2009) (quoting Gisbrecht, 535 U.S. at 808). The court “first look[s] to 20 the fee agreement and then adjust[s] downward if the attorney provided substandard representation 21 or delayed the case, or if the requested fee would result in a windfall.” Id. While a court may 22 consider an attorney’s lodestar in deciding whether an award of fees under section 406(b) is 23 reasonable, “a lodestar analysis should be used only as an aid (and not a baseline) in assessing the 24 reasonableness of the fee.” Laboy v. Colvin, 631 F. App’x 468, 469 (9th Cir. 2016). 25 26 1 The motion states that Plaintiff is entitled to receive only $44,694 in retroactive benefits. It is 27 unclear from the documentation submitted with the motion how Plaintiff’s counsel arrived at that 1 An award of fees under section 406(b) must be offset by any award of fees under EAJA. 2 Gisbrecht, 535 U.S. at 796. 3 III. DISCUSSION 4 In this case, Rohlfing reports that his office spent 16.95 hours litigating this case, which 5 includes 12.75 hours of attorney time and 4.2 hours of paralegal time. Rohlfing Decl., Ex. 4. 6 Therefore, granting Rohlfing’s request of $8,173 in attorneys’ fees would result in an effective 7 hourly rate of $641.02.2 8 Upon considering the record and arguments, the court finds that fees requested are 9 reasonable. First, the requested fee amount amounts to approximately 15% of the retroactive 10 benefits awarded, which is well below the statutory maximum of 25%. The hours Rohlfing expended 11 on this case also appear to be reasonable. See Rohlfing Decl., Ex. 4. 12 Second, although Rohlfing’s effective hourly rate is high, Gisbrecht and Crawford makes clear that lodestar methodology should not drive fee awards under section 406(b). This is because 13 “the lodestar method under-compensates attorneys for the risk they assume in representing SSDI 14 claimants and ordinarily produces remarkably smaller fees than would be produced by starting with 15 the contingent-fee agreement.” Crawford, 586 F.3d at 1149; see also Gisbrecht, 535 U.S. at 806 16 (emphasizing that the lodestar calculation is intended to govern in fee-shifting cases, not fee awards 17 under section 406(b)). Indeed, after Gisbrecht, “district courts generally have been deferential to 18 the terms of contingency fee contracts in § 406(b) cases, accepting that the resulting de facto hourly 19 rates may exceed those for non contingency-fee arrangements.” Hearn v. Barnhart, 262 F. Supp. 20 21 2 The court calculates the effective hourly rate based on the requested fee award under section 406(b) 22 without first deducting the EAJA fee award that will be refunded to Plaintiff. This is because section 406 establishes the “exclusive regime for obtaining fees for successful representation of Social 23 Security benefits claimants.” Gisbrecht, 535 U.S. at 795-96. An attorney may receive fee awards under both EAJA and section 406(b) but because section 406(b) fees are exclusive, the attorney 24 must refund to the claimant the smaller of the fee awards. Id. at 796. In other words, the fee awards under those statutes are independent of each other and the court must determine whether the total 25 section 406(b) award is itself reasonable. See Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (“[A]n award under § 406(b) compensates an attorney for all the 26 attorney’s work before a federal court on behalf of the Social Security claimant in connection with the action that resulted in past-due benefits.” (emphasis added)); see also Ainsworth v. Berryhill, 27 No. 16-cv-03933-BLF, 2020 WL 6149710, at *2 (N.D. Cal. Oct. 20, 2020) (calculating the effective 1 2d 1033, 1037 (N.D. Cal. 2003) (Infante, J.). 2 Third, California district courts have awarded comparable or greater fees under section 3 406(b), including to Rohlfing. See, e.g., Morrieson v. Saul, 2020 WL 2404614, at *1 (E.D. Cal. 4 May 12, 2020) (awarding Rohlfing $20,600 in attorneys’ fees out of the claimant’s total award of 5 $106,446); Truett v. Berryhill, 2017 WL 3783892, at *2 (S.D. Cal. Aug. 31, 2017) (awarding an 6 attorney 24.9% of the past-due benefits, which resulted in an effective hourly rate of $1,788.62); 7 Harrell v. Berryhill, No. 16-cv-2428-TSH, 2018 WL 4616735 (N.D. Cal. Sept.

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 NORTHERN DISTRICT OF CALIFORNIA 7 8 CINDY LAURAL MONTEITH, Case No. 18-cv-04481-DMR

9 Plaintiff, ORDER ON MOTION FOR 10 v. ATTORNEYS’ FEES

11 COMMISSIONER OF SOCIAL Re: Dkt. No. 31 SECURITY, 12 Defendant. 13 Plaintiff Cindy Monteith filed a complaint seeking to reverse the Commissioner of the Social 14 Security Administration’s administrative decision to deny her application for benefits under Title II 15 of the Social Security Act, 42 U.S.C. § 401 et seq. The court granted Plaintiff’s motion for summary 16 judgment and remanded the case for further proceedings. [Docket No. 26.] Following remand, an 17 Administrative Law Judge (“ALJ”) found that Plaintiff is disabled and entitled to past-due disability 18 benefits. Plaintiff’s counsel Lawrence Rohlfing now moves for an award of attorneys’ fees under 19 42 U.S.C. § 406(b). [Docket No. 31 (“Mot.”).] The Commissioner filed an analysis of the fee 20 request. [Docket No. 34 (“Response”).] 21 Having carefully considered the parties’ submissions, the court grants the motion. 22 I. BACKGROUND 23 Plaintiff applied for Social Security Disability Insurance (“SSDI”) benefits on October 9, 24 2014. Her application was initially denied on March 12, 2015 and again on reconsideration on June 25 17, 2015. Following a hearing, an ALJ issued a decision finding Plaintiff not disabled. After the 26 Appeals Council denied Plaintiff’s request for review, she appealed to this court. The court granted 27 Plaintiff’s motion for summary judgment and remanded the case for further proceedings. [Docket 1 No. 26.] On December 9, 2020, an ALJ issued a fully favorable decision. Mot. at 10-11, Declaration 2 of Lawrence Rohlfing (“Rohlfing Decl.”), Ex. 2. Plaintiff was awarded $54,286 in past-due 3 disability benefits.1 Response, Ex. A. 4 The retainer agreement between Plaintiff and Rohlfing permits Rohlfing to request an 5 attorneys’ fees award of up to 25% of any past-due benefits awarded. Rohlfing Decl., Ex. 1. 6 Rohlfing is requesting an award of attorneys’ fees in the amount of $8,173. Mot. at 3. Of this 7 amount, Plaintiff will be refunded $3,000 for the Equal Access to Justice Act (“EAJA”) fees this 8 court approved on April 29, 2020. See Docket No. 30. 9 The Commissioner does not oppose Rohlfing’s request for fees. Instead, he presents an 10 analysis of the requested fees in his role “resembling that of a trustee” for Plaintiff. See Response 11 at 2. 12 II. LEGAL STANDARD Under the Social Security Act, an attorney who successfully represents a claimant before a 13 court may seek an award of attorneys’ fees not to exceed 25 percent of any past-due benefits 14 eventually awarded. 42 U.S.C. § 406(b). While contingency fee agreements are permissible in 15 Social Security cases, section 406(b) “calls for court review of such arrangements as an independent 16 check, to assure that they yield reasonable results in particular cases.” Gisbrecht v. Barnhart, 535 17 U.S. 789, 807 (2002). In deciding whether a fee agreement is reasonable, courts must consider “the 18 character of the representation and the results the representative achieved.” Crawford v. Astrue, 586 19 F.3d 1142, 1151 (9th Cir. 2009) (quoting Gisbrecht, 535 U.S. at 808). The court “first look[s] to 20 the fee agreement and then adjust[s] downward if the attorney provided substandard representation 21 or delayed the case, or if the requested fee would result in a windfall.” Id. While a court may 22 consider an attorney’s lodestar in deciding whether an award of fees under section 406(b) is 23 reasonable, “a lodestar analysis should be used only as an aid (and not a baseline) in assessing the 24 reasonableness of the fee.” Laboy v. Colvin, 631 F. App’x 468, 469 (9th Cir. 2016). 25 26 1 The motion states that Plaintiff is entitled to receive only $44,694 in retroactive benefits. It is 27 unclear from the documentation submitted with the motion how Plaintiff’s counsel arrived at that 1 An award of fees under section 406(b) must be offset by any award of fees under EAJA. 2 Gisbrecht, 535 U.S. at 796. 3 III. DISCUSSION 4 In this case, Rohlfing reports that his office spent 16.95 hours litigating this case, which 5 includes 12.75 hours of attorney time and 4.2 hours of paralegal time. Rohlfing Decl., Ex. 4. 6 Therefore, granting Rohlfing’s request of $8,173 in attorneys’ fees would result in an effective 7 hourly rate of $641.02.2 8 Upon considering the record and arguments, the court finds that fees requested are 9 reasonable. First, the requested fee amount amounts to approximately 15% of the retroactive 10 benefits awarded, which is well below the statutory maximum of 25%. The hours Rohlfing expended 11 on this case also appear to be reasonable. See Rohlfing Decl., Ex. 4. 12 Second, although Rohlfing’s effective hourly rate is high, Gisbrecht and Crawford makes clear that lodestar methodology should not drive fee awards under section 406(b). This is because 13 “the lodestar method under-compensates attorneys for the risk they assume in representing SSDI 14 claimants and ordinarily produces remarkably smaller fees than would be produced by starting with 15 the contingent-fee agreement.” Crawford, 586 F.3d at 1149; see also Gisbrecht, 535 U.S. at 806 16 (emphasizing that the lodestar calculation is intended to govern in fee-shifting cases, not fee awards 17 under section 406(b)). Indeed, after Gisbrecht, “district courts generally have been deferential to 18 the terms of contingency fee contracts in § 406(b) cases, accepting that the resulting de facto hourly 19 rates may exceed those for non contingency-fee arrangements.” Hearn v. Barnhart, 262 F. Supp. 20 21 2 The court calculates the effective hourly rate based on the requested fee award under section 406(b) 22 without first deducting the EAJA fee award that will be refunded to Plaintiff. This is because section 406 establishes the “exclusive regime for obtaining fees for successful representation of Social 23 Security benefits claimants.” Gisbrecht, 535 U.S. at 795-96. An attorney may receive fee awards under both EAJA and section 406(b) but because section 406(b) fees are exclusive, the attorney 24 must refund to the claimant the smaller of the fee awards. Id. at 796. In other words, the fee awards under those statutes are independent of each other and the court must determine whether the total 25 section 406(b) award is itself reasonable. See Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (“[A]n award under § 406(b) compensates an attorney for all the 26 attorney’s work before a federal court on behalf of the Social Security claimant in connection with the action that resulted in past-due benefits.” (emphasis added)); see also Ainsworth v. Berryhill, 27 No. 16-cv-03933-BLF, 2020 WL 6149710, at *2 (N.D. Cal. Oct. 20, 2020) (calculating the effective 1 2d 1033, 1037 (N.D. Cal. 2003) (Infante, J.). 2 Third, California district courts have awarded comparable or greater fees under section 3 406(b), including to Rohlfing. See, e.g., Morrieson v. Saul, 2020 WL 2404614, at *1 (E.D. Cal. 4 May 12, 2020) (awarding Rohlfing $20,600 in attorneys’ fees out of the claimant’s total award of 5 $106,446); Truett v. Berryhill, 2017 WL 3783892, at *2 (S.D. Cal. Aug. 31, 2017) (awarding an 6 attorney 24.9% of the past-due benefits, which resulted in an effective hourly rate of $1,788.62); 7 Harrell v. Berryhill, No. 16-cv-2428-TSH, 2018 WL 4616735 (N.D. Cal. Sept. 24, 2018) (awarding 8 $49,584.96 in attorneys’ fees, representing an effective hourly rate of $1,213.83 and 24.37% of the 9 past-due benefits); Ainsworth v. Berryhill, No. 16-cv-03933-BLF, 2020 WL 6149710, at *2 (N.D. 10 Cal. Oct. 20, 2020) (finding an effective hourly rate of $1,325.34 reasonable); Ciletti v. Berryhill, 11 No. 17-cv-05646-EMC, 2019 WL 144584, at *2 (N.D. Cal. Jan. 9, 2019) (granting a fee request for 12 $35,442.00, which constituted 23.47% of the past-due benefits awarded). Finally, nothing in the record suggests that Rohlfing provided substandard representation. 13 He achieved a substantial award of past-due benefits for his client. Plaintiff was served with notice 14 of the current motion and did not oppose. See Mot. at 12, Proof of Service. 15 In light of the above considerations, the requested fee award is “not excessively large in 16 relation to the benefits achieved.” Crawford, 586 F.3d at 1151. 17 IV. CONCLUSION 18 For the reasons stated above, the motion for attorneys’ fees is granted. The court awards 19 fees in the amount of $8,173. Rohlfing shall refund Plaintiff the $3,000 previously awarded under 20 EAJA. 21

23 IT IS SO ORDERED. 24 Dated: June 15, 2021 25 ______________________________________ 26 Donna M. Ryu 27 United States Magistrate Judge

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