1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SERGIO C., Case No.: 3:20-cv-02270-AHG

12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. ATTORNEY FEES PURSUANT TO

(d)(2)(B) 14 KILOLO KIJAKAZI, Commissioner of

Social Security, 15 [ECF No. 24]

16 Defendant. 17 18 19

20 21 22

23 24

25 26 27

28 1 This matter comes before the Court on Counsel’s Motion for Attorney Fees Pursuant 2 to

(d)(2)(B), filed by Plaintiff’s counsel Lawrence D. Rohlfing on 3 April 27, 2023. ECF No. 24. For the reasons set forth below, the Court GRANTS the 4 motion. 5 I. BACKGROUND 6 Plaintiff Sergio C. (“Plaintiff”) filed this action on November 20, 2020, seeking 7 review of the Commissioner of Social Security’s (“Commissioner”) denial of his 8 application for social security disability and supplemental security income benefits. ECF 9 No. 1. The parties consented to proceed before a Magistrate Judge on December 2, 2020. 10 ECF No. 7. Pursuant to the Court’s Order, the parties filed a Joint Motion for Judicial 11 Review on November 1, 2021, stating their positions on the disputed issues in the case. 12 ECF No. 13. On February 2, 2022, the Court reversed the Commissioner’s denial of 13 disability insurance benefits and remanded to the Administrative Law Judge (“ALJ”) for 14 the calculation and award of benefits. ECF No. 21. On remand, the Commissioner awarded 15 Plaintiff $105,397.44 in total past due benefits. ECF No. 24-5. On April 14, 2022, pursuant 16 to a joint motion, this Court awarded Plaintiff $1,890.00 in attorney fees under the Equal 17 Access to Justice Act (“EAJA”),

(d). ECF No. 22.1 18 In the instant motion, Plaintiff’s counsel Lawrence D. Rohlfing seeks an order 19 awarding him attorney fees in the amount of $20,000 for representing Plaintiff in this 20 action, and further ordering Mr. Rohlfing to reimburse Plaintiff the amount of $4,930.00 21 for the EAJA fees previously awarded by the Court. ECF No. 24. The Commissioner has 22 taken no position on the reasonableness of counsel’s request. Despite being given notice of 23 the Motion and his right to file a response by both Mr. Rohlfing and the Court, Plaintiff 24

25 1 Although the Court granted an EAJA fee award in the amount of only $1,890.00 in this 26 action, the Court previously granted a $3,040.00 EAJA fee award following Plaintiff’s 27 earlier appeal to this Court. See Carranza-Villalobos v. Berryhill, Case No. 3:17-cv-2273- BEN-MSB, at ECF No. 26 (Feb. 11, 2019). Therefore, the Court references a total EAJA 28 1 has not responded to date. Accordingly, the Court took the matter under submission and 2 finds it ripe for decision without oral argument. 3 II. LEGAL STANDARD 4 Section 1383(d)(2) is the attorney fees provision that applies where, as here, a 5 claimant is awarded Supplemental Security Income (“SSI”) under Title XVI of the Social 6 Security Act. See Barrera Aguilar v. Saul, No. CV 16-7565 SS,

, at *1 7 n.2 (C.D. Cal. Sept. 16, 2019). The legal standard for analyzing an attorney fee claim under 8 § 1382(d)(2) is the same as the legal standard for analyzing a similar request under 42

arising from a successful claim for Disability Insurance Benefits (“DIB”) 10 under Title II.

The Court will therefore rely on authority interpreting a request for 11 attorney fees under either § 1383(d)(2) or § 406 in this Order, and refer to § 1383(d)(2) and 12 § 406 interchangeably. See

(d)(2)(A) (“The provisions of section 406 [] 13 shall apply to this part to the same extent as they apply in the case of subchapter II of this 14 chapter.”); see also Gumm v. Colvin,

, at *2 (C.D. Cal. July 28, 2016) 15 (“[T]he Court analyzes the [§ 1383(d)(2)] Motion as if it were a request for Section 406(b) 16 fees.”). 17 “Under

(b), a court entering judgment in favor of [a social security] 18 claimant who was represented by an attorney ‘may determine and allow as part of its 19 judgment a reasonable fee for such representation, not in excess of 25 percent of the total 20 of the past-due benefits to which the claimant is entitled by reason of such judgment.’” 21 Crawford v. Astrue,

(9th Cir. 2009) (en banc) (quoting 42 U.S.C. 22 § 406(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney for the successful 23 claimant must show that the fee sought is reasonable2 for the services rendered.” Gisbrecht 24 v. Barnhart,

(2002). 25

26 27 2 The Court notes that the lodestar calculation does not apply to the instant motion. See Gisbrecht,

(explaining that the lodestar method is applicable to “disputes 28 1 “[A] district court charged with determining a reasonable fee award under 2 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee agreements,’ . . . 3 ‘looking first to the contingent-fee agreement, then testing it for reasonableness[.]’” 4 Crawford,

(quoting Gisbrecht,

). When determining 5 reasonableness of the fee award, courts must consider “whether the amount need be 6 reduced, not whether the [lodestar] amount should be enhanced.” Crawford,

1149. While there is not a definitive list of factors, courts should consider “the character of 8 the representation and the results the representative achieved.” Gisbrecht,

. 9 “The court may properly reduce the fee for substandard performance, delay, or benefits 10 that are not in proportion to the time spent on the case.” Crawford,

. 11 Finally, “an EAJA award offsets an award under Section 406(b), so that the [amount 12 of the total past-due benefits the claimant actually receives] will be increased by the . . . 13 EAJA award up to the point the claimant receives 100 percent of the past-due benefits.” 14 Gisbrecht,

. 15 III. DISCUSSION 16 On August 12, 2016, Plaintiff and the Law Offices of Lawrence D. Rohlfing entered 17 into a Social Security Representation Agreement (“Agreement”). ECF No. 24-1. Pursuant 18 to the Agreement, where, as here, counsel successfully prosecuted any adverse decision of 19 the Social Security Administration in federal court, Plaintiff agreed to pay counsel a 20 21 22 406(b) is of another genre: [i]t authorizes fees payable from the successful party’s 23 recovery”); see also Crawford,

(explaining that attorney fee awards under

(b), “in contrast” to fee awards assessed against the losing party under fee- 24 shifting statutes, “are not shifted. They are paid from the award of past-due benefits and 25 the amount of the fee, up to 25% of past-due benefits, is based on the agreement between the attorney and the client.”); see, e.g., Shultz v. Comm’r of Soc. Sec., No. 17cv1823-CAB- 26 MDD,

, at *3–*4 (S.D. Cal. Aug. 14, 2020) (not applying 27 the lodestar calculation, when the motion was not opposed by the Commissioner or plaintiff); Berry v. Saul, No. 16cv1700-MMA-AGS,

at *2 n.2 (S.D. 28 1 contingency fee of 25% of past-due benefits awarded by the Commissioner upon reversal 2 of any unfavorable ALJ decision for work before the Court.

. 3 The administrative proceedings became final on April 20, 2023, when the Social 4 Security Administration issued its Notice of Award of $105,397.44. See ECF No. 24 at 9. 5 Plaintiff’s counsel seeks a total award of $20,000.00 under the contingency fee contract, 6 representing 19% of the past due benefits paid or payable to Plaintiff, compared to the total 7 withholding of $26,349.36. ECF No. 24 at 3; see ECF No. 24 at 5 (awarding Plaintiff 8 $105,397.44 in total past due benefits). Counsel argues that the amount sought in the instant 9 motion “is reasonable in light of the services expended and results achieved,” considering 10 counsel’s firm “expended 29.34 hours of attorney time and paralegal time in the 11 representation of [Plaintiff] in this matter through the entry of the order of remand.”

at 12 9. 13 If the motion is granted, Plaintiff's counsel would be required to reimburse Plaintiff 14 the $4,930.00 in EAJA fees previously awarded by the Court. See, e.g., Gisbrecht, 535 15 U.S. at 796, (noting that attorney fees are payable under both § 406(b) and EAJA, but “the 16 claimant’s attorney must refund to the claimant the amount of the smaller fee.”) (quoting 17 EAJA, Section 206(b) of

as amended by

,

186 (Aug. 5, 1985)); Stephanie Nicole M. G. v. Kijakazi, No. CV 5:20-01481-RAO, 2022

, at *2 (C.D. Cal. Apr. 20, 2022) (“An attorney must refund to the client the 20 EAJA fees received when the § 406(b) award exceeds the EAJA fees.”). 21 Upon careful review of the documents submitted, and the applicable law, the Court 22 finds that counsel’s fee request is reasonable. Plaintiff’s counsel and his paralegals 23 24 25 26 27 28 1 expended 29.34 hours on this case. Id. at 12. The de facto hourly rate is $681.66, which 2 falls on the low end of the range that has been approved by courts in similar cases, including 3 in this district. See Crawford,

(approving de facto hourly rates of $519, 4 $875, and $902 in 2009); Likens v. Colvin, No. 11-CV-0407-LAB-BGS,

6810657, at *2 (S.D. Cal. Dec. 2, 2014) (approving de facto hourly rate of $666.68); Nash 6 v. Colvin, No. 12-cv-2781-GPC-RBB,

, at *2 (S.D. Cal. Nov. 7, 2014) 7 (approving de facto hourly rate of $656); Sproul v. Astrue, No. 11-cv-1000-IEG-DHB, 8

, at *2 (S.D. Cal. Jan. 30, 2013) (approving de facto hourly rate of $800). 9 Moreover, the Court finds that Plaintiff’s counsel “assumed a substantial risk of not 10 recovering attorney[] fees. At the time that Plaintiff and his counsel signed the contingency 11 fee agreement, Plaintiff had an unfavorable ruling from the ALJ and had just filed this 12 action for judicial review.” Shultz,

, at *5–6. The Court may 13 consider the risk assumed by counsel when considering the reasonableness of a fee request. 14 Id.; see also Moreno v. Berryhill, No. 13-cv-8492-PLA,

, at *3 (C.D. 15 Cal. July 19, 2018) (finding a § 406(b) fee request amounting to a de facto hourly rate of 16 $912.56 to be reasonable where “[c]ounsel assumed the risk of nonpayment inherent in a 17 contingency agreement, [and] the fee does not exceed—and indeed, is now less than—the 18 25 percent statutory cap, and Counsel’s efforts ultimately proved quite successful for 19 plaintiff.”). Similarly, here, counsel’s $20,000 fee request is less than the 25% statutory 20 21

22 23 3 While every case is different, the amount of time spent on this case (20.59 hours by 24 counsel and 8.75 hours by counsel’s paralegals) is similar to the time spent by counsel and paralegals in each of the three underlying cases approved by the Ninth Circuit in Crawford. 25

(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 in Washington; and 26.9 hours by counsel and 2.6 hours by paralegal in Trejo). 27 4 The de facto hourly rate is calculated by dividing the $20,000.00 fee requested [amount 28 1 amounting to 19% of the total $105,397.44 in past-due benefits awarded to Plaintiff 2 remand. 3 Lastly, Plaintiff's counsel has submitted a billing statement detailing the work 4 || performed to litigate this case in federal court. ECF No. 24-4. The Court finds these billing 5 || records reflect a reasonable amount of time spent on work before the Court to bring this 6 || case to a successful result for Plaintiff. There is nothing in the record to suggest substandard 7 || performance by counsel, or that counsel delayed this litigation in order to amass more in 8 || potential fees. As a result of counsel’s work, Plaintiff received a favorable decision and a 9 || significant award of past-due benefits. Thus, none of the factors that might favor reducing 10 ||the fee award, such as “substandard performance, delay, or benefits that are not in 11 proportion to the time spent on the case” are present in this case. Gisbrecht,

Consequently, the Court concludes that counsel’s request for attorney fees is 13 ||/reasonable and that it does not constitute a “windfall” to Plaintiff's counsel.

14 IV. CONCLUSION 15 For the reasons set forth above, the Court GRANTS Plaintiff’s counsel’s motion for 16 || attorney fees pursuant to

(b). The Court AWARDS Lawrence D. Rohlfing, 17 || Esq. attorney fees in the amount of $20,000.00. The Court HEREBY ORDERS Lawrence 18 ||D. Rohlfing, Esq to reimburse Plaintiff the amount of $4,930.00 for EAJA fees awarded 19 || by this Court. 20 IT IS SO ORDERED. 21 22 ||Dated: June 27, 2023 _ Siow. Xion Honorable Allison H. Goddard 24 United States Magistrate Judge 25 26 27 28