1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEMETRIUS R., Case No. 19-cv-1126-MMA-MDD

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

(b) 14 KILOLO KIJAKAZI, Acting

Commissioner of Social Security, 15 [Doc. No. 29] Defendant. 16 17 18 19 Young Cho, counsel for Plaintiff Demetrius R., moves for an award of attorney’s 20 fees pursuant to

(b) in the amount of $34,065.00, with a credit to Plaintiff 21 for the EAJA fees previously paid in the amount of $5,700. Plaintiff has not responded to 22 Attorney Cho’s request, and the Social Security Commissioner (the “Commissioner”)1 23 does not take a position on the reasonableness of the requested amount. See Doc. No. 31. 24 The Court found this matter suitable for determination on the papers and without oral 25

26 1 Kilolo Kijakazi is now the Acting Commissioner of Social Security. Therefore, pursuant to Federal 27 Rule of Civil Procedure 25(d), Kilolo Kijakazi is substituted 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 Security Act, 42 28 1 argument pursuant to Civil Local Rule 7.1.d.1. See Doc. No. 30. For the reasons set 2 forth below, the Court GRANTS the motion. 3 I. BACKGROUND 4 On June 17, 2019, Plaintiff filed this social security appeal challenging the denial 5 of his application for disability insurance benefits. See Doc. No. 1 ¶¶ 6, 7, 9. The Court 6 referred all matters arising in this social security appeal to the assigned Magistrate Judge 7 for report and recommendation (“R&R”) pursuant to

(b)(1)(B) and Civil 8 Local Rule 72.1. See Doc. No. 9. On August 5, 2020, the Magistrate Judge issued an 9 R&R recommending that the Court remand the case for further administrative action to 10 determine whether Plaintiff is disabled. See Doc. No. 21. The Commissioner objected to 11 the R&R. See Doc. No. 22. The Court overruled the Commissioner’s objection, adopted 12 the R&R, granted Plaintiff’s motion for summary judgment, denied the Commissioner’s 13 cross-motion for summary judgment, and remanded the matter to the Social Security 14 Administration for further administrative proceedings consistent with the Court’s Order 15 and the R&R. See Doc. No. 24. Thereafter, pursuant to the parties’ stipulation, see Doc. 16 No. 27, the Court awarded Plaintiff attorney fees and expenses in the total amount of 17 $5,700.00 under the Equal Access to Justice Act (“EAJA”),

(d) and 18 costs in the amount of $400.00 under

, see Doc. No. 28. 19 On remand, the Commissioner awarded Plaintiff $136,260.00 in past-due benefits. 20 See Doc. No. 29 at 5. Now, pursuant to a contingency fee arrangement, Attorney Cho 21 requests that the Court order payment of attorney’s fees in the amount of $34,065.00 and 22 reimbursement of $5,700 to Plaintiff. 23 II. LEGAL STANDARD 24 “Under

(b), a court entering judgment in favor of [a social 25 security] claimant who was represented by an attorney ‘may determine and allow as part 26 of its judgment a reasonable fee for such representation, not in excess of 25 percent of the 27 total of the past-due benefits to which the claimant is entitled by reason of such 28 judgment.’” Crawford v. Astrue,

(9th Cir. 2009) (en banc) (quoting 1 § 406(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney for the successful 2 claimant must show that the fee sought is reasonable for the services rendered.” 3 Gisbrecht v. Barnhart,

(2002).2 4 “[A] district court charged with determining a reasonable fee award under 5 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee agreements,’ . . . 6 ‘looking first to the contingent-fee agreement, then testing it for reasonableness.’” 7 Crawford,

(quoting Gisbrecht,

). When 8 determining reasonableness, the court must consider “whether the amount need be 9 reduced, not whether the loadstar amount should be enhanced.” Id. at 1149. While there 10 is not a definitive list of factors, courts should consider “the character of the 11 representation and the results the representative achieved.” Gisbrecht,

. 12 “The court may properly reduce the fee for substandard performance, delay, or benefits 13 that are not in proportion to the time spent on the case.” Crawford,

. 14 Finally, any fee award under § 406 must be offset by any award of attorney’s fees granted 15 under the EAJA.

; Gisbrecht,

. 16 III. DISCUSSION 17 In an agreement between Plaintiff and the Law Offices of Lawrence D. Rohlfing 18 dated May 30, 2018, Plaintiff agreed to pay counsel 25% of any past-due benefits 19 awarded by the Commissioner. See Doc. No. 29-1 (“Ex. 1”). The parties entered into 20 this agreement prior to initiating this action, and there is nothing in the record to suggest 21 the agreement was reached by improper means. Counsel for Plaintiff spent 29.3 hours 22 litigating this case in Court, resulting in this Court’s order granting Plaintiff summary 23

24 25 2 The lodestar calculation does not apply to determine reasonableness of fees under § 406(b). Gisbrecht,

(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,

(“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 judgment and remanding the case for further administrative proceedings, which 2 ultimately resulted in a favorable decision on remand. See Doc. No. 29 at 16–18 (“Cho 3 Decl.”) ¶ 5. Plaintiff received an award of $136,260.00 in retroactive benefits. Cho 4 Decl. ¶ 4. Plaintiff’s counsel seeks $34,065.00 in attorney’s fees, which constitutes 25% 5 of the past-due award and which is a proper amount under § 406(b)(1)(A). 6 The Court further finds there is no proper basis to reduce the award, and it is 7 reasonable. There is nothing in the record to suggest substandard performance, delay, or 8 a disproportionate amount of time spent on this case relevant to the benefits at stake. To 9 the contrary, as a result of counsel’s work, Plaintiff received a highly favorable decision 10 and a significant award of past-due benefits. And while the effective hourly rate is 11 approximately $1,162, which is at the high end of the range of rates awarded by courts, 12 see Williams v. Berryhill, No. EDCV 15-919-KK,

, at *6 13 (C.D. Cal. Nov. 13, 2018) (awarding fee request that provides an hourly rate of $1,553.36 14 per hour); Coles v. Berryhill, No. EDCV 14-1488-KK,

, at 15 *6 (C.D. Cal. June 21, 2018) (effective hourly rate of $1,431.94 reasonable under the 16 circumstances); Palos ex rel. Estate of Palos v. Colvin, No. CV 15-04261-DTB, 2016

, at *5 (C.D. Cal. Sept. 20, 2016) (fees sought translate to 18 $1,546.39 per hour for attorney and paralegal services), the Court nonetheless finds it 19 reasonable. See Ryan v. Comm’r of Soc. Sec., No. 1:19-cv-00973-SAB, 2021 U.S. Dist.

, at *6 (E.D. Cal. July 19, 2021) (“Further, since Gisbrecht, courts note 21 that reducing a fee request is dicey business and find fee awards much higher than this to 22 be reasonable.”). Thus, based on the character of counsel’s representation and the 23 favorable results achieved, the Court finds the requested fees in the amount of $34,065.00 24 are reasonable. 25 IV. CONCLUSION 26 Based upon the foregoing, the Court GRANTS Plaintiff’s counsel’s motion for 27 attorney’s fees under

(b) and APPROVES an award in the amount of 28 $34,065.00. Consistent with the Commissioner’s statement of position, see Doc. No. 31, 1 Court declines to order the Commissioner to make this payment but rather DIRECTS 2 any fees ultimately withheld for counsel be made payable to the Law Offices of 3 Lawrence D. Rohlfing, Inc., CPC as set forth in counsel’s motion. The Court further 4 ||ORDERS Plaintiff's counsel to refund Plaintiff $5,700 in EAJA fees that counsel 5 || previously accepted for work. 6 IT IS SO ORDERED. 7 ||Dated: October 16, 2023 g Miku. M={ hiltr 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