1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 FELICE and CRAIG F., as heirs of Case No.: 22-cv-1394-DEB MICHAEL F.,1 12 ORDER GRANTING PLAINTIFF’S Plaintiffs, 13 COUNSEL’S MOTION FOR v. ATTORNEY FEES PURSUANT TO 14

(b) MARTIN O’MALLEY, Acting 15 Commissioner of Social Security,2

16 Defendant. [DKT. NO. 22] 17

18 Before the Court is Plaintiffs’ Counsel’s Motion for Attorney Fees Pursuant to 42

(b). Dkt. No. 22. Neither Plaintiffs nor the Commissioner oppose the Motion. 20 See Dkt. No. 23. For the reasons discussed below, the Court GRANTS the Motion. 21 I. BACKGROUND 22 Plaintiffs Felice and Craig F. filed this case in 2022, seeking review of the 23 Commissioner of Social Security’s (“Commissioner”) denial of their heir’s application for 24 25 1 In the interest of privacy, this Order uses only the first name and the initial of the last 26 name of the non-governmental party in this case. CivLR 7.1(e)(6)(b). 27 2 Martin O’Malley is substituted for Kilolo Kijakazi pursuant to Fed. R. Civ. P. 25(d). 28 1 disability insurance benefits. Dkt. No. 1. The Court remanded the case for further 2 proceedings pursuant to the parties’ joint motion for voluntary remand. Dkt. No. 18. 3 Pursuant to the parties’ joint motion, the Court awarded Plaintiff $2,622.34 in attorney fees 4 under the Equal Access for Justice Act (“EAJA”). Dkt. No. 21. An EAJA fee award of 5 $4761.45 was also awarded to Plaintiffs’ counsel in a related, previous remand of the 6 Commissioner’s denial of benefits. Dkt. No. 22 at 5–6. 7 On remand, the Commissioner issued a decision favorable to Plaintiff and awarded 8 $93,723.00 in past-due disability benefits. Dkt. No. 22 at 2. The Commissioner withheld 9 $23,430.75 from the past-due benefits in the event Plaintiff’s counsel requested payment 10 of fees. Dkt. No. 22 at 5. 11 II. LEGAL STANDARD 12 Pursuant to the Social Security Act, attorneys may seek “a reasonable fee” for cases 13 in which they have successfully represented Social Security claimants. 42 U.S.C. 14 § 406(b)(1)(A). This fee cannot exceed “25 percent of the total of the past-due benefits to 15 which the claimant is entitled . . . .” Id.; see also Gisbrecht v. Barnhart,

, 807 16 (2002) (“Within the 25 percent [statutory] boundary . . ., the attorney for the successful 17 claimant must show that the fee sought is reasonable for the services rendered.”). 18 The Court “must ‘approach [§ 406(b)] fee determinations by looking first to the 19 contingent-fee agreement, then testing it for reasonableness.’” Crawford v. Astrue, 586

(9th Cir. 2009) (en banc) (quoting Gisbrecht,

). In 21 evaluating the reasonableness of the fee award, the Court must consider “the character of 22 the representation and the results the representative achieved.” Gisbrecht,

23 (citations omitted). The Court also “may properly reduce the fee for substandard 24 performance, delay, or benefits that are not in proportion to the time spent on the case.” 25 Crawford, 586 F.3d at 1151 (citation omitted). 26 Finally, the Court must offset the § 406(b) fee award by any fees granted under the 27 EAJA. See Gisbrecht,

(“Fee awards may be made under both prescriptions 28 1 [i.e., the EAJA and

(b)], but the claimant’s attorney must ‘refun[d] to the 2 claimant the amount of the smaller fee.’”) (citation omitted). 3 III. DISCUSSION 4 Plaintiff’s counsel seeks $23,430.75 in attorney fees, offset by the $7,383.79 EAJA 5 fees, for a net award of $16,046.96. Dkt. No. 22 at 6.3 The Court has conducted an 6 independent inquiry of the proposed fee award and finds it is reasonable and does not 7 constitute a windfall. 8 Plaintiff and counsel agreed to a contingent-fee agreement where counsel receives 9 twenty-five percent of Plaintiff’s past-due benefits. Dkt. No. 22 at 9–11. Counsel is 10 requesting attorney fees of $23,430.75, the maximum allowed under the contingency 11 agreement and

(b). Dkt. No. 22 at 6–9.4 Counsel’s representation resulted 12 in Plaintiff receiving a favorable decision and an award of past-due benefits. Counsel also 13 “assumed significant risk” in accepting this case, “including the risk that no benefits would 14 be awarded or that there would be a long court or administrative delay in resolving” the 15 case. Crawford, 586 F.3d at 1152; see also Moreno v. Berryhill, No. 13-8492-PLA, 2018

, at *3 (C.D. Cal. July 19, 2018) (explaining the “risk of nonpayment inherent 17 in a contingency agreement”). 18 Finally, the Court does not find any reduction is warranted. See Crawford,

(“The court may properly reduce the fee for substandard performance, delay, or 20 benefits that are not in proportion to the time spent on the case.”) (citation omitted). There 21 is no evidence of substandard performance or delay, and the requested fees are “not 22 excessively large in relation to the benefits achieved” or the “time spent on the case.”

23 Counsel expended 30.64 hours (at $538/hour) on this case, along with paralegal time of 24 25 3 Counsel received EAJA fees from two related cases, one from 2019, and the other in 26 2023, for a total of $7,383.79. Dkt. No. 22 at 6. 27 4 Counsel’s motion states conflicting amounts of $23,430.75 and $23,450.75. The Court 28 1 || 6.45 hours, at $239/hour, rendering a baseline lodestar amount of $18,025.87. Dkt. No. 22 2 13-14. Those effective hourly rates are reasonable. See Crawford,

3 || (finding reasonable effective hourly rates of $519, $875, and $902). 4 IV. CONCLUSION 5 For the foregoing reasons, the Court GRANTS Plaintiff's Counsel’s Motion for Fees 6 || Pursuant to

(b) in the amount of $23,430.75. Dkt. No. 22. 7 The Commissioner is DIRECTED to certify payment of a $23,430.75 fee award, 8 || made payable to Rohlfing Law Firm, out of Plaintiff’s past-due benefits in accordance with 9 ||agency policy. 10 The Court further ORDERS Plaintiff’s counsel to refund Plaintiff $7,383.79 to 11 offset the EAJA fees previously awarded ($4761.45 in the 2019 case and $2622.34 in the 12 case). 13 IT IS SO ORDERED. 14 || Dated: November 27, 2024 — 5 Dando oa 16 Honorable Daniel E. Butcher United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28