1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 COREY Z.,1 Case No.: 19-cv-1318-MMP

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

(b) 14 MARTIN O’MALLEY, Commissioner of

Social Security, 15 [ECF No. 29] Defendant. 16 17 18 Pending before the Court is a Motion for Attorney Fees Pursuant to

406(b), in which Plaintiff’s counsel requests an award of fees for representing Corey Z. 20 (“Plaintiff”) in connection with this Social Security appeal. [ECF No. 29.] The 21 Commissioner of Social Security (“Defendant”) filed a response indicating it neither 22 supports nor opposes the motion. [ECF No. 32.] Though Plaintiff was served with the 23 pending motion and notified of the opportunity to respond, he did not file an objection. 24 [See ECF No. 29 at 2; ECF No. 29-1 at 18.] The parties have consented to the undersigned 25

26 27 1 In accordance with Civil Local Rule 7.1(e)(6)(b), the Court refers to all non-government parties by using their first name and last initial. 28 1 for all purposes. [ECF No. 33.] Pursuant to Civil Local Rule 7.1(d)(1), the Court finds the 2 motion suitable for determination without oral argument. For the reasons stated below, the 3 Court GRANTS the motion. 4 I. BACKGROUND 5 On July 16, 2019, Plaintiff filed a complaint seeking judicial review of the denial of 6 his application for Disability Insurance Benefits and Supplemental Security Income under 7 Title II and Title XVI of the Social Security Act. [ECF No. 1.] The Court granted Plaintiff’s 8 motion for summary judgment and denied Defendant’s cross-motion for summary 9 judgment, remanding the matter for further administrative proceedings consistent with its 10 opinion. [ECF Nos. 24, 27.2] Pursuant to the parties’ Joint Motion for the Award and 11 Payment of Attorney Fees and Expenses Pursuant to the Equal Access to Justice Act, 28

(d) and Costs Pursuant to

, the Court awarded attorney’s 13 fees in the amount of $4,200.00 under the Equal Access to Justice Act (“EAJA”).3 [ECF 14 Nos. 25, 26.] 15 On remand, Plaintiff was found disabled under the Social Security Act from 16 November 2, 2014 through December 31, 2019, thereby entitling him to $ 91,225.00 in 17 past-due benefits. [ECF No. 29-1 at 4; ECF No. 29-3 at 16.] 18 Throughout this action, Plaintiff has been represented by the Law Offices of 19 Lawrence D. Rohlfing Inc., CPC (“Counsel”). Counsel now moves for an attorney fee 20 award under

(b) in the amount of $22,806.25, which represents twenty- 21 five percent (25%) of Plaintiff’s total past-due benefits awarded. [ECF No. 29.] Counsel 22 23 2 On April 6, 2020, the Court issued an Amended Order re Cross-Motions for Summary 24 Judgment noting the Court’s prior March 12, 2020 Order, ECF No. 24, was incorrectly 25 captioned. [ECF No. 27.]

26 3 “Under EAJA, a party prevailing against the United States in court, including a successful 27 Social Security benefits claimant, may be awarded fees payable by the United States if the Government’s position in the litigation was not ‘substantially justified.’” Gisbrecht v. 28 1 also seeks an order requiring it to reimburse Plaintiff in the amount of $4,200.00 for the 2 EAJA fees previously paid. [Id.; ECF No. 29-1 at 4.] 3 II. LEGAL STANDARD 4

(b) governs fees for representation of individuals claiming Social 5 Security disability benefits for proceedings in court. Gisbrecht, 535 U.S. at 794. “Under 42

(b), a court entering judgment in favor of [a Social Security] claimant who 7 was represented by an attorney ‘may determine and allow as part of its judgment a 8 reasonable fee for such representation, not in excess of 25 percent of the total of the past- 9 due benefits to which the claimant is entitled by reason of such judgment.’” Crawford v. 10 Astrue,

(9th Cir. 2009) (en banc) (quoting § 406(b)(1)(A)). 11 Contingent-fee agreements are the “primary means by which fees are set for 12 successfully representing Social Security benefits claimants in court.” Gisbrecht,

at 807; see also Crawford,

. “[Section] 406(b) calls for court review of 14 such arrangements as an independent check, to assure that they yield reasonable results in 15 particular cases.” Gisbrecht, 535 U.S. at 807. The Ninth Circuit has instructed “a district 16 court charged with determining a reasonable fee award under § 406(b)(1)(A) must respect 17 ‘the primacy of lawful attorney-client fee agreements, . . . looking first to the contingent- 18 fee agreement, then testing it for reasonableness[.]’” Crawford,

(quoting 19 Gisbrecht, 535 U.S. at 808). 20 In determining the reasonableness of a fee award under § 406(b), the relevant inquiry 21 is “whether the amount need be reduced, not whether the loadstar amount should be 22 enhanced.” Id.4 District courts should consider “the character of the representation and the 23 results the representative achieved.” Gisbrecht, 535 U.S. at 808. “A fee resulting from a 24 contingent-fee agreement is unreasonable, and thus subject to reduction by the court, if the 25 attorney provided substandard representation or engaged in dilatory conduct in order to 26 27 4 District courts can “consider the lodestar calculation, but only as an aid in assessing the 28 1 increase the accrued amount of past-due benefits, or if the benefits are large in comparison 2 to the amount of time counsel spent on the case.” Crawford,

(internal 3 citation and quotation omitted). The attorney must establish the fees sought are reasonable. 4 Gisbrecht, 535 U.S. at 807. 5 Finally, any fee award under § 406(b) must be offset by the amount of attorney’s 6 fees awarded under the EAJA. See

; Gisbrecht, 535 U.S. at 796. 7 III. ANALYSIS 8 Pursuant to the Supreme Court’s directive in Gisbrecht, the Court begins with the 9 agreement. Plaintiff and Counsel entered a written contingent-fee agreement dated June 5, 10 2019 and then entered the same agreement again on January 2, 2020. Pursuant to the written 11 agreement, Plaintiff and his counsel expressly agreed “the fee for successful prosecution 12 of this matter” is “25% of the past due benefits awarded upon reversal of any 13 unfavorable ALJ decision for work before the court.” [ECF No. 35 at 3 ¶ 4; ECF No. 14 29-2 ¶ 4.] The parties further agreed counsel would “seek compensation under the Equal 15 Access to Justice Act and such amount shall credit to the client for fees otherwise payable 16 for that particular work.” [ECF No. 35 at 3 ¶ 4; ECF No. 29-2 ¶ 4.] The parties entered into 17 this fee agreement prior to initiating this federal action, and nothing in the record suggests 18 the agreement was reached by improper means. The firm spent 22.5 hours5 litigating this 19 matter in federal court, resulting in an order granting Plaintiff summary judgment and 20 remanding the case for further administrative proceedings. [ECF No. 29-1 at 15 ¶ 5, 29-5.] 21 In accord with this agreement, the requested fee of $22,806.25 equates to 25% of Plaintiff’s 22 total past-due benefits awarded. As the requested fees is “not in excess of 25 percent of the 23 total past-due benefits to which [Plaintiff] is entitled,” Counsel is entitled to the requested 24 fees, provided the fees are found reasonable. See § 406(b)(1)(A)). 25

26 27 5 In support of its fee motion, Counsel provided a breakdown of the time spent on this matter reflecting 2.8 hours in paralegal time and 19.7 hours in attorney time. [See ECF No. 28 1 The Court next considers the reasonableness of the fee and “whether the amount 2 need be reduced.” Crawford,

. Neither the character of the representation, 3 nor the results achieved warrant a reduction of the fee award. See Gisbrecht, 535 U.S. at 4 808. Nothing in the record suggests Counsel delayed the case. To the contrary, Counsel 5 secured an order granting Plaintiff summary judgment and remanding the case for further 6 administrative proceedings in less than nine months and then successfully obtained a 7 substantial benefit award for Plaintiff upon remand. [See ECF Nos. 1, 27, 29-3.] Though 8 Plaintiff was required to amend his complaint several times, such amendments did not 9 delay the disposition of the case or otherwise reflect substandard performance warranting 10 a reduction in fees. In addition, the amount of time spent litigating does not necessitate a 11 reduction in fees. See, e.g., Sean M. v. Kijakazi, No. 18-cv-2272,

, at *3 12 (S.D. Cal. Aug. 7, 2023) (“The Court agrees with Counsel that Counsel’s experience and 13 expertise in Social Security law helped facilitate a favorable outcome for [the plaintiff] and 14 with fewer hours billed.”). 15 Finally, the Court considers the lodestar calculation “as an aid in assessing the 16 reasonableness of the fee.” Crawford,

. Counsel’s effective hourly rate of 17 approximately $1,013.61 for the 22.5 total attorney and paralegal hours spent on the case 18 is within the range of rates found reasonable in similar Social Security cases involving this 19 same attorney and firm. See, e.g., Bartle v. Kijakazi, No. 20-cv-1431,

, 20 at *2 (S.D. Cal. Sept. 7, 2023) (approving 25% of past-due benefits, consisting of 21 $26,000.00 for 20.7 hours, making the effective hourly rate approximately $1,256.04); 22 Edward D. O. v. O’Malley, No. 20-cv-01551,

, at *3 (S.D. Cal. Oct. 16, 23 2024) (approving 17% of past-due benefits, consisting of $27,000 for 25.3 attorney and 24 paralegal hours, making the effective hourly rate approximately $1,067.19); Watkins v. 25 O’Malley, No. 21-cv-101,

, at *2 (S.D. Cal. May 24, 2024) (approving 26 25% of the past-due benefits, consisting of $31,317.93 for 20.0 hours, making the effective 27 hourly rate approximately $1,566.00); French v. Kijakazi, No. 21-cv-92,

8458252, at *2 (S.D. Cal. Dec. 5, 2023) (approving 19.2% of past-due benefits, consisting 1 $23,787.00 for 21.3 attorney and paralegal hours, making the effective hourly rate of 2 ||$1,116.76); Marie S. v. Kijakazi, No. 20-cv-2196,

at *1 (S.D. Cal. Mar. 3 ||24, 2023) (approving 16% of past-due benefits, consisting of $18,000 for 24.5 hours, 4 ||making effectively hourly rate of $735.00). Counsel also submitted a billing statement 5 || detailing the work performed on Plaintiffs case, and the Court finds the number of hours 6 || expended was reasonable. [See ECF No. 29-5.] In sum, the Court finds none of the factors 7 || support reducing the fee award, and Counsel’s requested fees are reasonable. 8 CONCLUSION 9 For the reasons set forth above, the Court GRANTS the motion for attorneys’ fees 10 |J/under

(b) and APPROVES an award in the amount of $22,806.25. 11 Consistent with the Commissioner’s statement of position, see ECF. No. 32, the Court 12 || declines to order the Commissioner to make this payment but rather DIRECTS any fees 13 |/ultimately withheld for counsel be made payable to the Law Offices of Lawrence D. 14 || Rohlfing, Inc., CPC as set forth in Counsel’s motion. The Court further ORDERS the Law 15 || Offices of Lawrence D. Rohlfing, Inc., CPC to reimburse Plaintiff in the amount of 16 || $4,200.00 for EAJA fees received. 17 IT IS SO ORDERED. 18 || Dated: December 23, 2024 “WA bY. Iy 1. Sete 19 HON. MICHELLE M. PETTIT United States Magistrate Judge 20 21 22 23 24 25 26 27 28