1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PATRICK S., Case No.: 3:23-cv-00480-AHG 12 Plaintiff, ORDER GRANTING PLAINTIFF’S COUNSEL’S MOTION FOR 13 v. ATTORNEY FEES PURSUANT TO 14 LELAND DUDEK, Acting Commissioner 42 U.S.C. § 406(b) of Social Security,1 15 [ECF No. 39] 16 17 Defendant. 18 19 20 21 22 23 24 25 26 1 Leland Dudek became the Acting Commissioner of the Social Security Administration 27 on February 16, 2025. Although Plaintiff originally brought this action against Former Acting Commissioner Kilolo Kijakazi, this case may properly proceed against Leland 28 1 Before the Court is Plaintiff’s counsel’s motion for attorney fees pursuant to 42 2 U.S.C. § 406(b). ECF No. 39. For the reasons set forth below, the Court GRANTS the 3 motion. 4 I. BACKGROUND 5 Former Plaintiff Renee S. (“Plaintiff”) filed this action on March 16, 2023, seeking 6 review of the Commissioner of Social Security’s (“Commissioner”) denial of her 7 application for social security disability insurance benefits. ECF No. 1. The parties 8 consented to proceed before a Magistrate Judge on March 20, 2023. ECF No. 4. On 9 March 25, 2024, the Court reversed the Commissioner’s denial of disability insurance 10 benefits and remanded to the Administrative Law Judge (“ALJ”) for the calculation and 11 award of benefits. ECF No. 15. 12 Unbeknownst to the Court at the time it issued the reversal order in her favor, Renee 13 S. died on February 13, 2024, leaving Plaintiff Patrick S. as her surviving spouse. ECF No. 14 17-1 at 2; ECF No. 17-2. Following Renee S.’s death, the Court granted the motion to 15 substitute Patrick S. as the Plaintiff in this case under Rule 25(a) of the Federal Rules of 16 Civil Procedure on November 7, 2024. ECF No. 37. On November 19, 2024, pursuant to a 17 joint motion, this Court awarded Plaintiff Patrick S. $6,700.16 in attorney fees under the 18 Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). ECF No. 38. 19 In the meantime, on remand, the Commissioner awarded the deceased claimant 20 Renee S. approximately $88,344.00 in total past due benefits, which the agency determined 21 was properly payable to Plaintiff Patrick S. as her surviving spouse. See ECF No. 39 at 5; 22 ECF No. 39-2; ECF No. 35. 23 In the instant motion, Plaintiff’s counsel seeks an order awarding Monica Perales 24 (Plaintiff’s counsel) attorney fees in the amount of $22,086.00 for representing Renee S. 25 in this action, and further ordering Ms. Perales to reimburse Plaintiff the amount of 26 $6,700.16 for the EAJA fees awarded by the Court. ECF No. 39. The Commissioner has 27 taken no position on the reasonableness of counsel’s request. Though he was notified of 28 the opportunity to oppose or otherwise respond to the motion (see ECF No. 39 at 2, 19), 1 Plaintiff has also taken no position on the reasonableness of counsel’s request. 2 II. LEGAL STANDARD 3 “Under 42 U.S.C. § 406(b), a court entering judgment in favor of [a social security] 4 claimant who was represented by an attorney ‘may determine and allow as part of its 5 judgment a reasonable fee for such representation, not in excess of 25 percent of the total 6 of the past-due benefits to which the claimant is entitled by reason of such judgment.’” 7 Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (quoting 42 U.S.C. 8 § 406(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney for the successful 9 claimant must show that the fee sought is reasonable2 for the services rendered.” Gisbrecht 10 v. Barnhart, 535 U.S. 789, 807 (2002). 11 “[A] district court charged with determining a reasonable fee award under 12 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee agreements,’ . . . 13 ‘looking first to the contingent-fee agreement, then testing it for reasonableness[.]’” 14 Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). When determining 15 reasonableness of the fee award, courts must consider “whether the amount need be 16 reduced, not whether the [lodestar] amount should be enhanced.” Crawford, 586 F.3d at 17 1149. While there is not a definitive list of factors, courts should consider “the character of 18 the representation and the results the representative achieved.” Gisbrecht, 535 U.S. at 808. 19 “The court may properly reduce the fee for substandard performance, delay, or benefits 20 that are not in proportion to the time spent on the case.” Crawford, 586 F.3d at 1151. 21 Finally, “an EAJA award offsets an award under Section 406(b), so that the [amount 22 23 2 The Court notes that the lodestar calculation does not apply to the instant motion. See 24 Gisbrecht, 535 U.S. at 802 (explaining that the lodestar method is applicable to “disputes 25 over the amount of fees 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 26 recovery”); see also Crawford, 586 F.3d at 1148 (“SSDI attorney[] fees, in contrast, are 27 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, is based on the agreement between the attorney and the 28 1 of the total past-due benefits the claimant actually receives] will be increased by the . . . 2 EAJA award up to the point the claimant receives 100 percent of the past-due benefits.” 3 Gisbrecht, 535 U.S. at 796. 4 III. DISCUSSION 5 On April 1, 2024, Plaintiff Patrick S. (on behalf of his deceased spouse Renee S.) 6 and the Law Offices of Lawrence D. Rohlfing entered into a Social Security Representation 7 Agreement (“Agreement”). ECF No. 39-1. Pursuant to the Agreement, Plaintiff agreed to 8 pay counsel a contingency-fee of up to 25% of past-due benefits awarded by the 9 Commissioner. Id. The administrative proceedings became final on June 26, 2024, when 10 the Social Security Administration issued its Notice of Award. See ECF No. 39-2. 11 Plaintiff’s counsel seeks a total award of $22,086.00 in attorney fees and “bases this fee on 12 25% of the net payable past due benefits.” ECF No. 39 at 6; see ECF No. 39-2 (awarding 13 Renee S. $88,344.20 in total past due benefits between June 2020 and January 2024). 14 Counsel argues that the amount sought in the instant motion “falls within the range of 15 reasonable” based on her firm’s expenditure of 28.67 hours on the case in this court. Id. at 16 5. Additionally, if granted by the Court, this award would be reduced by the $6,700.16 17 that has already been received in attorney fees under the EAJA. Id. 18 Upon careful review of the documents submitted, and the applicable law, the Court 19 finds that counsel’s fee request is reasonable. Plaintiff’s counsel and her paralegals 20 expended 28.67 hours on this case.3 ECF No. 39-3. The de facto hourly rate is $770.35, 21 which falls on the low end of the range that has been approved by courts in similar cases, 22 including in this district. See Crawford, 586 F.3d at 1153 (approving de facto hourly rates 23 24 3 While every case is different, the amount of time spent on this case (24.97 hours by 25 counsel and 3.7 hours by counsel’s paralegals) are similar to the underlying cases approved in Crawford.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PATRICK S., Case No.: 3:23-cv-00480-AHG 12 Plaintiff, ORDER GRANTING PLAINTIFF’S COUNSEL’S MOTION FOR 13 v. ATTORNEY FEES PURSUANT TO 14 LELAND DUDEK, Acting Commissioner 42 U.S.C. § 406(b) of Social Security,1 15 [ECF No. 39] 16 17 Defendant. 18 19 20 21 22 23 24 25 26 1 Leland Dudek became the Acting Commissioner of the Social Security Administration 27 on February 16, 2025. Although Plaintiff originally brought this action against Former Acting Commissioner Kilolo Kijakazi, this case may properly proceed against Leland 28 1 Before the Court is Plaintiff’s counsel’s motion for attorney fees pursuant to 42 2 U.S.C. § 406(b). ECF No. 39. For the reasons set forth below, the Court GRANTS the 3 motion. 4 I. BACKGROUND 5 Former Plaintiff Renee S. (“Plaintiff”) filed this action on March 16, 2023, seeking 6 review of the Commissioner of Social Security’s (“Commissioner”) denial of her 7 application for social security disability insurance benefits. ECF No. 1. The parties 8 consented to proceed before a Magistrate Judge on March 20, 2023. ECF No. 4. On 9 March 25, 2024, the Court reversed the Commissioner’s denial of disability insurance 10 benefits and remanded to the Administrative Law Judge (“ALJ”) for the calculation and 11 award of benefits. ECF No. 15. 12 Unbeknownst to the Court at the time it issued the reversal order in her favor, Renee 13 S. died on February 13, 2024, leaving Plaintiff Patrick S. as her surviving spouse. ECF No. 14 17-1 at 2; ECF No. 17-2. Following Renee S.’s death, the Court granted the motion to 15 substitute Patrick S. as the Plaintiff in this case under Rule 25(a) of the Federal Rules of 16 Civil Procedure on November 7, 2024. ECF No. 37. On November 19, 2024, pursuant to a 17 joint motion, this Court awarded Plaintiff Patrick S. $6,700.16 in attorney fees under the 18 Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). ECF No. 38. 19 In the meantime, on remand, the Commissioner awarded the deceased claimant 20 Renee S. approximately $88,344.00 in total past due benefits, which the agency determined 21 was properly payable to Plaintiff Patrick S. as her surviving spouse. See ECF No. 39 at 5; 22 ECF No. 39-2; ECF No. 35. 23 In the instant motion, Plaintiff’s counsel seeks an order awarding Monica Perales 24 (Plaintiff’s counsel) attorney fees in the amount of $22,086.00 for representing Renee S. 25 in this action, and further ordering Ms. Perales to reimburse Plaintiff the amount of 26 $6,700.16 for the EAJA fees awarded by the Court. ECF No. 39. The Commissioner has 27 taken no position on the reasonableness of counsel’s request. Though he was notified of 28 the opportunity to oppose or otherwise respond to the motion (see ECF No. 39 at 2, 19), 1 Plaintiff has also taken no position on the reasonableness of counsel’s request. 2 II. LEGAL STANDARD 3 “Under 42 U.S.C. § 406(b), a court entering judgment in favor of [a social security] 4 claimant who was represented by an attorney ‘may determine and allow as part of its 5 judgment a reasonable fee for such representation, not in excess of 25 percent of the total 6 of the past-due benefits to which the claimant is entitled by reason of such judgment.’” 7 Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (quoting 42 U.S.C. 8 § 406(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney for the successful 9 claimant must show that the fee sought is reasonable2 for the services rendered.” Gisbrecht 10 v. Barnhart, 535 U.S. 789, 807 (2002). 11 “[A] district court charged with determining a reasonable fee award under 12 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee agreements,’ . . . 13 ‘looking first to the contingent-fee agreement, then testing it for reasonableness[.]’” 14 Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). When determining 15 reasonableness of the fee award, courts must consider “whether the amount need be 16 reduced, not whether the [lodestar] amount should be enhanced.” Crawford, 586 F.3d at 17 1149. While there is not a definitive list of factors, courts should consider “the character of 18 the representation and the results the representative achieved.” Gisbrecht, 535 U.S. at 808. 19 “The court may properly reduce the fee for substandard performance, delay, or benefits 20 that are not in proportion to the time spent on the case.” Crawford, 586 F.3d at 1151. 21 Finally, “an EAJA award offsets an award under Section 406(b), so that the [amount 22 23 2 The Court notes that the lodestar calculation does not apply to the instant motion. See 24 Gisbrecht, 535 U.S. at 802 (explaining that the lodestar method is applicable to “disputes 25 over the amount of fees 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 26 recovery”); see also Crawford, 586 F.3d at 1148 (“SSDI attorney[] fees, in contrast, are 27 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, is based on the agreement between the attorney and the 28 1 of the total past-due benefits the claimant actually receives] will be increased by the . . . 2 EAJA award up to the point the claimant receives 100 percent of the past-due benefits.” 3 Gisbrecht, 535 U.S. at 796. 4 III. DISCUSSION 5 On April 1, 2024, Plaintiff Patrick S. (on behalf of his deceased spouse Renee S.) 6 and the Law Offices of Lawrence D. Rohlfing entered into a Social Security Representation 7 Agreement (“Agreement”). ECF No. 39-1. Pursuant to the Agreement, Plaintiff agreed to 8 pay counsel a contingency-fee of up to 25% of past-due benefits awarded by the 9 Commissioner. Id. The administrative proceedings became final on June 26, 2024, when 10 the Social Security Administration issued its Notice of Award. See ECF No. 39-2. 11 Plaintiff’s counsel seeks a total award of $22,086.00 in attorney fees and “bases this fee on 12 25% of the net payable past due benefits.” ECF No. 39 at 6; see ECF No. 39-2 (awarding 13 Renee S. $88,344.20 in total past due benefits between June 2020 and January 2024). 14 Counsel argues that the amount sought in the instant motion “falls within the range of 15 reasonable” based on her firm’s expenditure of 28.67 hours on the case in this court. Id. at 16 5. Additionally, if granted by the Court, this award would be reduced by the $6,700.16 17 that has already been received in attorney fees under the EAJA. Id. 18 Upon careful review of the documents submitted, and the applicable law, the Court 19 finds that counsel’s fee request is reasonable. Plaintiff’s counsel and her paralegals 20 expended 28.67 hours on this case.3 ECF No. 39-3. The de facto hourly rate is $770.35, 21 which falls on the low end of the range that has been approved by courts in similar cases, 22 including in this district. See Crawford, 586 F.3d at 1153 (approving de facto hourly rates 23 24 3 While every case is different, the amount of time spent on this case (24.97 hours by 25 counsel and 3.7 hours by counsel’s paralegals) are similar to the underlying cases approved in Crawford. 586 F.3d at 1145 (The time spent in the three underlying cases was: 19.5 26 hours by counsel and 4.5 hours by paralegal in Crawford; 17.45 hours by counsel and 4.7 27 hours by paralegal in Washington; and 26.9 hours by counsel and 2.6 hours by paralegal in 28 Trejo). 1 of $519, $875, and $902 in 2009); Luzette B. v. King, No. 23cv483-MSB, 2025 WL 2 373256, at *3 (S.D. Cal. Feb. 3, 2025) (approving de facto hourly rate of $1,573.03); 3 Habibullah A. v. Colvin, No. 20cv1971-AGS, 2025 WL 306641, at *1 (S.D. Cal. Jan. 27, 4 2025) (approving de facto hourly rate of $1,707.31); Clinton S. v. King, No. 21cv1359- 5 MMP, 2025 WL 297033, at *3–4 (S.D. Cal. Jan. 24, 2025) (applying a downward 6 adjustment to an application for § 406(b) fees that would have resulted in a de facto hourly 7 rate of $1,787.31, but ultimately approving an award resulting in a de facto hourly rate of 8 $1,340.48); Richardson v. Colvin, No. 15-cv-1456-MMA-BLM, 2017 WL 1683062, at *2 9 (S.D. Cal. May 2, 2017) (approving de facto hourly rate of $770); Christopher R. B. v. 10 Colvin, No. 8:23-CV-00249-BFM, 2025 WL 26796, at *2 (C.D. Cal. Jan. 3, 2025) 11 (approving a de facto hourly rate of $876 and collecting cases for the proposition that this 12 rate was “well within the rates that the Ninth Circuit and courts in this District have 13 approved”). 14 Moreover, as discussed above, Plaintiff Patrick S. and the former Plaintiff Renee S. 15 both entered into contingent fee agreements with Plaintiff’s counsel in this case allowing 16 for counsel to collect up to 25% of any past-due benefit award. ECF No. 39-2. Courts 17 “‘recognize that basing a reasonableness determination on a simply hourly rate basis is 18 inappropriate when an attorney is working pursuant to a reasonably contingency contract 19 for which there runs a substantial risk of loss.’ . . . Courts are loathe to penalize experienced 20 counsel for efficient representation under contingency agreements, particularly in the social 21 security context.” Sproul v. Astrue, No. 11-CV-1000-IEG DHB, 2013 WL 394056, at *2 22 (S.D. Cal. Jan. 30, 2013) (quoting Hearn v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. 23 Cal. 2003)). That is, Plaintiff’s counsel “assumed a substantial risk of not recovering 24 attorney[] fees. At the time that Plaintiff and his counsel signed the contingency fee 25 agreement, Plaintiff had an unfavorable ruling from the ALJ and had just filed this action 26 for judicial review.” Shultz v. Comm’r of Soc. Sec., No. 17cv1823-CAB-MDD, 2020 WL 27 4732065, at *2 (S.D. Cal. Aug. 14, 2020); see also Moreno v. Berryhill, No. 13-cv-8492- 28 PLA, 2018 WL 3490777, at *3 (C.D. Cal. July 19, 2018) (“[c]ounsel assumed the risk of | |}nonpayment inherent in a contingency agreement, [and] and the fee does not exceed ... the 2 ||25 percent statutory cap[.]’). For that reason, respecting “the primacy of lawful attorney- 3 ||client fee agreements,” as it must, the Court’s consideration must start with the fee 4 ||agreement, which provides for the requested fee award. Crawford, 586 F.3d at 1148. 5 Turning to the other factors that may assist the Court in testing the reasonableness 6 ||of the fee agreement, Plaintiff's counsel has submitted a billing statement detailing the 7 || work performed to litigate this case in federal court. ECF No. 39-3. There is nothing in the 8 ||record to suggest substandard performance by counsel, or that counsel delayed this 9 || litigation in order to amass more in potential fees. As a result of counsel’s work, Plaintiff 10 ||received a favorable decision and a significant award of past-due benefits. Thus, none of 11 factors outlined in Gisbrecht favor reducing the fee award, and the Court concludes 12 ||that counsel’s request for attorney fees is reasonable and that it does not constitute a 13 || “windfall” to Plaintiff's counsel. See Gisbrecht, 535 U.S. at 808. 14 IV. CONCLUSION 15 For the reasons set forth above, the Court GRANTS Plaintiffs counsel’s motion for 16 || attorney fees pursuant to 42 U.S.C. §406(b). The Court AWARDS Monica Perales attorney 17 || fees in the amount of $22,086.00.4 18 The Court further ORDERS Monica Perales to reimburse Plaintiff the amount of 19 || $6,700.16 for EAJA fees previously awarded by this Court. 20 IT IS SO ORDERED. 21 Dated: February 26, 2025 A Ib HD | | b 22 Honorable Allison H. Goddard 33 United States Magistrate Judge 24 25 26 27 28 * The Court DIRECTS the Commissioner to certify the fee of $22,086.00 payable to Law Offices of Lawrence D. Rohlfing.