1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HELEN S., Case No. 19-cv-1581-MMA (NLS)
12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. ATTORNEY’S FEES PURSUANT TO 42 U.S.C. § 406(b) 14 KILOLO KIJAKAZI, Commissioner of
Social Security, 15 [Doc. No. 24] Defendant. 16 17 18 Marc V. Kalagian, Counsel for Plaintiff Helen S., moves for an award of attorney’s 19 fees pursuant to 42 U.S.C. § 406(b) in the amount of $6,286.00 from Plaintiff’s recovery 20 of approximately $47,967.00 in past-due social security benefits. Plaintiff has not 21 responded to Attorney Kalagian’s request, and the Social Security Commissioner1 does 22 not take a position on the reasonableness of the requested amount.2 Doc. No. 26. The 23 24 1 Kilolo Kijakazi is now the Acting Commissioner of Social Security. Therefore, pursuant to Federal 25 Rule of Civil Procedure 25(d), Kilolo Kijakazi is substituted for Andrew Saul as the defendant in this suit. No further action needs to be taken, pursuant to the last sentence of section 205(g) of the Social 26 Security Act, 42 U.S.C. § 405(g).
27 2 “[T]he Commissioner of Social Security has no direct financial stake in the answer to the § 406(b) question; instead, she plays a part in the fee determination resembling that of a trustee for the 28 1 Court found this matter suitable for determination on the papers and without oral 2 argument pursuant to Civil Local Rule 7.1.d.1. Doc. No. 25. For the reasons set forth 3 below, the Court GRANTS the motion. 4 I. BACKGROUND 5 On August 22, 2019, Plaintiff filed a complaint against the Commissioner, seeking 6 judicial review of the Commissioner’s decision denying her application for disability 7 benefits. See Doc. No. 1. The parties jointly moved to remand the action to the Social 8 Security Administration for further proceedings pursuant to sentence four of 42 U.S.C. 9 § 405(g). See Doc. No. 20. The Court granted the motion and remanded the action to the 10 Social Security Administration for further administrative proceedings consistent with the 11 terms set forth in the parties’ joint motion. See Doc. No. 21. 12 The parties then jointly moved the Court for attorney’s fees and costs in the total 13 amount of $2,914.25 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. 14 § 2412(d). See Doc. No. 22. The Court granted the joint motion. Doc. No. 23. On 15 remand, the Commissioner awarded Plaintiff approximately $47,967.00 in retroactive 16 social security benefits. 17 Now, pursuant to a contingency fee agreement between Plaintiff and her attorney, 18 counsel requests the Court order the payment of attorney’s fees in the amount of 19 $6,286.00, and reimburse Plaintiff in the amount of $2,514.25 for EAJA fees previously 20 paid by the Commissioner. 21 II. LEGAL STANDARD 22 “Under 42 U.S.C. § 406(b), a court entering judgment in favor of [a social 23 security] claimant who was represented by an attorney ‘may determine and allow as part 24 of its judgment a reasonable fee for such representation, not in excess of 25 percent of the 25 total of the past-due benefits to which the claimant is entitled by reason of such 26 judgment.’” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (quoting 27 § 406(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney for the successful 28 1 claimant must show that the fee sought is reasonable for the services rendered.” 2 Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).3 3 “[A] district court charged with determining a reasonable fee award under 4 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee agreements,’ . . . 5 ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 6 Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). When 7 determining reasonableness, the court must consider “whether the amount need be 8 reduced, not whether the loadstar amount should be enhanced.” Id. at 1149. While there 9 is not a definitive list of factors, courts should consider “the character of the 10 representation and the results the representative achieved.” Gisbrecht, 535 U.S. at 808. 11 “The court may properly reduce the fee for substandard performance, delay, or benefits 12 that are not in proportion to the time spent on the case.” Crawford, 586 F.ed at 1151. 13 Finally, any fee award under § 406 must be offset by any award of attorney’s fees 14 granted under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. 15 III. DISCUSSION 16 In an agreement between Plaintiff and the Law Offices of Rohlfing & Kalagian, 17 LLP dated July 17, 2019, Plaintiff agreed to pay counsel 25% of any past-due benefits 18 awarded by the Commissioner. See Doc. No. 24 at 9; Doc. No. 24-1 at 1. The parties 19 entered into this agreement prior to initiating this action, and there is nothing in the 20 record to suggest the agreement was reached by improper means. Counsel for Plaintiff 21 spent 11.25 hours on this case, resulting in this Court’s order remanding the case for 22 further administrative proceedings and ultimately a favorable decision on remand. See 23
24 25 3 The lodestar calculation does not apply to determine reasonableness of fees under § 406(b). Gisbrecht, 535 U.S. at 802 (explaining that the lodestar method is applicable to “disputes over the amount of fees 26 properly shifted to the loser in the litigation” whereas “Section 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 27 attorneys’ fees, in contract [with fees authorized pursuant to fee-shifting statutes], are not shifted. They are paid from the award of past-due benefits and the amount of the fee, up to 25% of past-due benefits, 28 1 Doc. No. 24 at 17; see also 24-4 at 1. Plaintiff received an award of approximately 2 $47,967.00 in retroactive benefits. Doc. No. 24 at 6. Plaintiff’s counsel seeks $6,286.00 3 in attorney’s fees, which constitutes 13.1% of the past-due award and which is a proper 4 amount under § 406(b)(1)(A). 5 The Court further finds there is no proper basis to reduce the award, and it is 6 reasonable. There is nothing in the record to suggest substandard performance, delay, or 7 a disproportionate amount of time spent on this case relevant to the benefits at stake. As 8 a result of counsel’s work, Plaintiff received a highly favorable decision and a significant 9 award of past-due benefits. Finally, the effective hourly rate is approximately $558, 10 which is within the range of rates awarded by some courts. See Crawford, 586 F.3d at 11 1153 (approving effective hourly rates of $519, $875, and $902); see e.g., Likens 12 v. Colvin, No. 11CV0407-LAB (BGS), 2014 WL 6810657, at *2 (S.D. Cal. Dec. 2, 2014) 13 (effective hourly rate of $666.68 per hour); Nash v. Colvin, No. 12CV2781-GPC (RBB), 14 2014 WL 5801353, at *2 (S.D. Cal. Nov. 7, 2014) (effective hourly rate of $656 per 15 hour); Sproul v. Astrue, No. 11CV1000-IEG (DHB), 2013 WL 394053, at *2 (S.D. Cal. 16 Jan. 30 2013) (effective hourly rate of $800 per hour); Richardson v. Colvin, No.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HELEN S., Case No. 19-cv-1581-MMA (NLS)
12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. ATTORNEY’S FEES PURSUANT TO 42 U.S.C. § 406(b) 14 KILOLO KIJAKAZI, Commissioner of
Social Security, 15 [Doc. No. 24] Defendant. 16 17 18 Marc V. Kalagian, Counsel for Plaintiff Helen S., moves for an award of attorney’s 19 fees pursuant to 42 U.S.C. § 406(b) in the amount of $6,286.00 from Plaintiff’s recovery 20 of approximately $47,967.00 in past-due social security benefits. Plaintiff has not 21 responded to Attorney Kalagian’s request, and the Social Security Commissioner1 does 22 not take a position on the reasonableness of the requested amount.2 Doc. No. 26. The 23 24 1 Kilolo Kijakazi is now the Acting Commissioner of Social Security. Therefore, pursuant to Federal 25 Rule of Civil Procedure 25(d), Kilolo Kijakazi is substituted for Andrew Saul as the defendant in this suit. No further action needs to be taken, pursuant to the last sentence of section 205(g) of the Social 26 Security Act, 42 U.S.C. § 405(g).
27 2 “[T]he Commissioner of Social Security has no direct financial stake in the answer to the § 406(b) question; instead, she plays a part in the fee determination resembling that of a trustee for the 28 1 Court found this matter suitable for determination on the papers and without oral 2 argument pursuant to Civil Local Rule 7.1.d.1. Doc. No. 25. For the reasons set forth 3 below, the Court GRANTS the motion. 4 I. BACKGROUND 5 On August 22, 2019, Plaintiff filed a complaint against the Commissioner, seeking 6 judicial review of the Commissioner’s decision denying her application for disability 7 benefits. See Doc. No. 1. The parties jointly moved to remand the action to the Social 8 Security Administration for further proceedings pursuant to sentence four of 42 U.S.C. 9 § 405(g). See Doc. No. 20. The Court granted the motion and remanded the action to the 10 Social Security Administration for further administrative proceedings consistent with the 11 terms set forth in the parties’ joint motion. See Doc. No. 21. 12 The parties then jointly moved the Court for attorney’s fees and costs in the total 13 amount of $2,914.25 pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. 14 § 2412(d). See Doc. No. 22. The Court granted the joint motion. Doc. No. 23. On 15 remand, the Commissioner awarded Plaintiff approximately $47,967.00 in retroactive 16 social security benefits. 17 Now, pursuant to a contingency fee agreement between Plaintiff and her attorney, 18 counsel requests the Court order the payment of attorney’s fees in the amount of 19 $6,286.00, and reimburse Plaintiff in the amount of $2,514.25 for EAJA fees previously 20 paid by the Commissioner. 21 II. LEGAL STANDARD 22 “Under 42 U.S.C. § 406(b), a court entering judgment in favor of [a social 23 security] claimant who was represented by an attorney ‘may determine and allow as part 24 of its judgment a reasonable fee for such representation, not in excess of 25 percent of the 25 total of the past-due benefits to which the claimant is entitled by reason of such 26 judgment.’” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (quoting 27 § 406(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney for the successful 28 1 claimant must show that the fee sought is reasonable for the services rendered.” 2 Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002).3 3 “[A] district court charged with determining a reasonable fee award under 4 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee agreements,’ . . . 5 ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 6 Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). When 7 determining reasonableness, the court must consider “whether the amount need be 8 reduced, not whether the loadstar amount should be enhanced.” Id. at 1149. While there 9 is not a definitive list of factors, courts should consider “the character of the 10 representation and the results the representative achieved.” Gisbrecht, 535 U.S. at 808. 11 “The court may properly reduce the fee for substandard performance, delay, or benefits 12 that are not in proportion to the time spent on the case.” Crawford, 586 F.ed at 1151. 13 Finally, any fee award under § 406 must be offset by any award of attorney’s fees 14 granted under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. 15 III. DISCUSSION 16 In an agreement between Plaintiff and the Law Offices of Rohlfing & Kalagian, 17 LLP dated July 17, 2019, Plaintiff agreed to pay counsel 25% of any past-due benefits 18 awarded by the Commissioner. See Doc. No. 24 at 9; Doc. No. 24-1 at 1. The parties 19 entered into this agreement prior to initiating this action, and there is nothing in the 20 record to suggest the agreement was reached by improper means. Counsel for Plaintiff 21 spent 11.25 hours on this case, resulting in this Court’s order remanding the case for 22 further administrative proceedings and ultimately a favorable decision on remand. See 23
24 25 3 The lodestar calculation does not apply to determine reasonableness of fees under § 406(b). Gisbrecht, 535 U.S. at 802 (explaining that the lodestar method is applicable to “disputes over the amount of fees 26 properly shifted to the loser in the litigation” whereas “Section 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 27 attorneys’ fees, in contract [with fees authorized pursuant to fee-shifting statutes], are not shifted. They are paid from the award of past-due benefits and the amount of the fee, up to 25% of past-due benefits, 28 1 Doc. No. 24 at 17; see also 24-4 at 1. Plaintiff received an award of approximately 2 $47,967.00 in retroactive benefits. Doc. No. 24 at 6. Plaintiff’s counsel seeks $6,286.00 3 in attorney’s fees, which constitutes 13.1% of the past-due award and which is a proper 4 amount under § 406(b)(1)(A). 5 The Court further finds there is no proper basis to reduce the award, and it is 6 reasonable. There is nothing in the record to suggest substandard performance, delay, or 7 a disproportionate amount of time spent on this case relevant to the benefits at stake. As 8 a result of counsel’s work, Plaintiff received a highly favorable decision and a significant 9 award of past-due benefits. Finally, the effective hourly rate is approximately $558, 10 which is within the range of rates awarded by some courts. See Crawford, 586 F.3d at 11 1153 (approving effective hourly rates of $519, $875, and $902); see e.g., Likens 12 v. Colvin, No. 11CV0407-LAB (BGS), 2014 WL 6810657, at *2 (S.D. Cal. Dec. 2, 2014) 13 (effective hourly rate of $666.68 per hour); Nash v. Colvin, No. 12CV2781-GPC (RBB), 14 2014 WL 5801353, at *2 (S.D. Cal. Nov. 7, 2014) (effective hourly rate of $656 per 15 hour); Sproul v. Astrue, No. 11CV1000-IEG (DHB), 2013 WL 394053, at *2 (S.D. Cal. 16 Jan. 30 2013) (effective hourly rate of $800 per hour); Richardson v. Colvin, No. 15-cv- 17 1456-MMA (BLM), 2017 WL 1683062, at *2 (S.D. Cal. May 2, 2017) (effective hourly 18 rate of $770 per hour). Thus, based on the character of counsel’s representation and the 19 favorable results achieved, the Court finds the requested fees in the amount of $6,286.00 20 are reasonable. 21 22 23 * * * 24 25 26 27 28 IV. CONCLUSION 2 For the foregoing reasons, the Court GRANTS Plaintiffs counsel’s motion for 3 || attorney’s fees under 42 U.S.C. § 406(b) and APPROVES an award in the amount of 4 $6,286.00. The Court further ORDERS Plaintiffs counsel to refund Plaintiff $2,514.25 5 |}in EAJA fees that counsel previously accepted for work before the Court. 6 IT IS SO ORDERED. 7 ||Dated: February 16, 2022 8 BWMiiduh Wl -£ hiphtlr 9 HON. MICHAEL M. ANELLO 10 United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28