1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KURT LAPID, an individual, Case No.: 22-cv-1531-GPC-BLM

12 Plaintiff, ORDER AUTHORIZING 13 v. COUNSEL’S ATTORNEY’S FEES REQUEST 14 KILOLO KIJAKAZI, Acting

Commissioner of Social Security, 15 [ECF No. 15] Defendants. 16

17 Before the Court is a motion for authorization of $15,362.56 in attorney's fees 18 pursuant to

(b) by Plaintiff’s Counsel Martha Yancey. ECF No. 15. 19 Defendant Kilolo Kijakazi, Acting Commissioner of Social Security (“Defendant”), filed 20 a response declining to take a position on the motion. ECF No. 17. Plaintiff Kurt Lapid 21 (“Plaintiff”) did not file a pro se response. The Court finds the matter is appropriate for 22 decision on the papers and hereby VACATES the hearing previously scheduled for 23 January 5, 2024. 24 For the reasons set forth below, the Court GRANTS the motion. 25 26 27 1 BACKGROUND 2 This case began when Plaintiff applied for disability benefits for the second time 3 on January 8, 2020, stating that he was disabled as of July 1, 2018. ECF No. 7-3 at 2-3, 4 30.1 The Social Security Administration denied his claim initially and upon 5 reconsideration. ECF No. 7-3 at 30. An Administrative Law Judge (“ALJ”) affirmed the 6 denial in October 2020 on the ground that Plaintiff was not disabled,

but upon appeal, 7 the Appeals Council vacated and remanded to the ALJ. ECF No. 7-3 at 43. On remand, 8 the ALJ again denied his application in June 2022 on a finding that he was not disabled. 9 ECF No. 7-2 at 39, 43. This time, in August 2022, the Appeals Council denied his 10 request for review. ECF No. 7-2 at 2. 11 On October 5, 2022, Plaintiff signed a contract with Counsel Martha Yancey 12 (“Counsel”) to represent him in his appeal in federal court. ECF No. 15-3 at 1-3. In the 13 contract Plaintiff agreed to pay Counsel 25% of all past-due benefits awarded to him and 14 reasonable out-of-pocket expenses.

. Two days later, Plaintiff, through Counsel, 15 filed a complaint in this Court. ECF No. 1. After Counsel submitted a settlement 16 proposal to Defendant in early January 2023, Plaintiff and Defendant jointly moved to 17 reverse the Agency’s denial and remand for reconsideration. ECF No. 9 (motion for 18 voluntary remand); ECF No. 15 at 4, ECF No. 15-5 at 1. The Court granted the motion 19 on January 6, 2023. ECF No. 10. A week later, the Court granted the parties’ joint 20 motion for attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”) and 21 awarded Plaintiff $2,600 in attorney’s fees. ECF Nos. 11-12. 22 On November 12, 2023, on remand from this Court, the Social Security 23 Administration reversed its earlier decision and found that Plaintiff was disabled as of 24 July 1, 2018 and therefore eligible for social security disability benefits. ECF No. 15-1 at 25 26 27 1 Page numbers based on CM/ECF pagination. 1 1. The Agency awarded Plaintiff $90,368 in past-due benefits and $1,577 per month 2 going forward until at least March 2025 when his case will be re-evaluated.

. 3 On November 27, 2023, Counsel filed the instant motion pursuant to 42 U.S.C. 4 § 406(b) seeking $15,362.56 in attorney’s fees. ECF No. 15. Defendant filed a response 5 of non-opposition as “the Commissioner [of the Social Security Administration] has no 6 direct financial stake in the outcome of this motion . . . but ‘plays a part in the fee 7 determination resembling that of a trustee for claimants.’” ECF No. 17 at 2 (quoting 8 Gisbrecht v. Barnhart,

(2002)). Plaintiff did not filed a pro se 9 response and Counsel did not file a reply. 10 LEGAL STANDARD 11

(b) permits the Court, upon “entering judgment in favor of [a 12 social security disability] claimant who was represented by an attorney,” to “determine 13 and allow as part of its judgment a reasonable fee for such representation” up to “25 14 percent of the total of the past-due benefits to which the claimant is entitled by reason of 15 such judgment.” Crawford v. Astrue,

(9th Cir. 2009) (en banc) 16 (quoting

(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney 17 for the successful claimant must show that the fee sought is reasonable for the services 18 rendered.” Gisbrecht,

. The fee is payable out of the 19 plaintiff’s/claimant’s past-due benefits, not in addition to them. 42 U.S.C. 20 § 406(b)(1)(A). 21 An attorney-client fee agreement is the “primary means by which [reasonable] fees 22 are determined” in this context, assuming that there is no evidence of “fraud or 23 overreaching” in the negotiation of the agreement. Crawford,

. A 24 court “must respect the ‘primacy of lawful attorney-client fee agreements,’ ‘looking first 25 to the contingent-fee agreement, then testing it for reasonableness[.]’”

at 1148 26 (quoting Gisbrecht,

)). District courts are generally “deferential to 27 1 the terms of contingency fee contracts in § 406(b) cases, accepting that the de facto 2 hourly rates may exceed those for non contingency-fee arrangements.” Hearn v. 3 Barnhart,

(N.D. Cal. 2003). Still, courts must review 4 contingency fee “arrangements as an independent check, to assure that they yield 5 reasonable results in particular cases.” Gisbrecht,

. While there is not a 6 definitive list of factors, courts should consider “the character of the representation and 7 the results the representative achieved.”

. “The court may properly reduce the 8 fee for substandard performance, delay, or benefits that are not in proportion to the time 9 spent on the case.” Crawford,

. Additionally, a section 406 fee award 10 must be offset by any award of attorney's fees granted under EAJA as long as the EAJA 11 award is the lesser of the two awards. Gisbrecht,

; see

12 (EAJA). 13 DISCUSSION 14 The Court first looks to the contingency fee contract. Crawford,

. 15 Plaintiff and Counsel entered a “Federal Court Fee Contract SSI/Social Security 16 Disability” (“Agreement”) under which they agreed that the “attorney shall charge and 17 receive as the fee an amount equal to twenty-five percent (25%) of the past-due benefits 18 that are awarded to [Plaintiff’s] family and [Plaintiff] in the event [Plaintiff’s] case is 19 won.” ECF No. 15-3 at 1. Counsel now seeks an award of $15,362.56 in attorney's 20 fees―17% of Plaintiff’s past-due benefits. ECF No. 15 at 1 (motion); see also ECF No. 21 15-1 at 3 ($15,362.56 ÷ $90,368.00 = 17.00%). Counsel submits that she spent 12.3 22 hours on the case, ECF No. 15-5 at 1, meaning that her request is equal to payment of 23 $1,248.99 per hour. ECF No. 15 at 1, 4 ($15,362.56 ÷ 12.3 = $1,248.99). Counsel 24 argues that this amount is reasonable and comes to a reasonable hourly rate because 25 “Plaintiff’s case was not a run-of-the-mill Social Security Disability case. Plaintiff’s case 26 was fact-driven and required a concise, persuasive settlement proposal. . . . [Counsel’s] 27 1 experience enabled her to review the record and efficiently detail significant errors 2 committed by the ALJ [leading to] . . . excellent results[.]” ECF No. 15 at 4. 3 The Court finds that the Agreement is reasonable. The fee it sets is within the 4 statutory ceiling of 25%,

(b)(1)(A), and there is no evidence of “fraud or 5 overreaching” in the negotiation of the Agreement. See Crawford,

, 6 1151. The Agreement clearly states that: (1) Plaintiff agrees to pay Counsel 25% of past- 7 due benefits awarded; (2) this could amount to over $1,000 per hour for Counsel’s work; 8 (3) if counsel receives an EAJA award and a percentage of the past-due benefits, Counsel 9 will return the smaller amount; and (4) Plaintiff is not guaranteed to win his case. ECF 10 No. 15-3 at 1-2. And Counsel has asked for less than what the Agreement calls for, 11 requesting 17% of past-due benefits rather than 25%. 12 Further, the Court finds no reason to reduce the requested fee award. Neither “the 13 character of the representation [nor] the results . . . achieved” warrant a reduction. 14 Gisbrecht,

. Within a few months of filing the federal complaint, Counsel 15 submitted a settlement proposal sufficiently convincing to prompt the Commissioner of 16 the Social Security Administration to jointly move to reverse the Agency’s decision and 17 remand for reconsideration. ECF No. 9 (joint motion to remand); ECF No. 15 at 4 18 (instant motion). On remand, the Social Security Administration held that Plaintiff was 19 disabled and granted benefits dating back to December 2018. ECF No. 15-1 at 1. 20 Nothing in the record suggests that Counsel provided substandard legal services; rather it 21 appears that Counsel skillfully and efficiently resolved the case in Plaintiff’s favor. 22 Counsel also did not engage in dilatory conduct. She filed the complaint within days of 23 signing the Agreement and secured a remand from this Court less than three months later. 24 ECF No. 15-3 at 3 (Agreement signed on October 5, 2022); ECF No. 1 (complaint filed 25 on October 7, 2022); ECF No. 10 (order granting joint motion to remand on January 6, 26 2023). Plaintiff received a favorable decision from the Agency just over a year after 27 1 retaining Counsel. ECF No. 15-3 at 3 (Agreement signed on October 5, 2022); ECF No. 2 15-1 at 1 (Notice of Award dated November 12, 2023). 3 Finally, the benefits are not out of proportion to the time Counsel spent on the case. 4 See Crawford,

. As listed in Counsel’s billing statement, the number of 5 hours she expended, 12.3, was reasonable. ECF No. 15-5 at 1. And although Counsel’s 6 effective hourly rate of $1,248.99 for 12.3 hours is somewhat high, ECF No. 15-5 at 1; 7 ECF No. 15 at 1, it is within the range of what other courts in this district have found to 8 be reasonable in social security cases. See Crawford,

, 1153 9 (approving de facto hourly rates of $519, $875, and $902 in 2009); Reddick v. Berryhill, 10 No. 16-cv-29,

, at *2 (S.D. Cal. May 30, 2019) (approving an effective 11 hourly rate of $1,990.74); Satariano v. Saul, No. 21-cv-548,

, at *2-3 12 (S.D. Cal. Nov. 7, 2023) (approving an effective hourly rate of $1401.87).2 It is 13 justifiable that de facto hourly rates in contingency fee cases exceed those in non- 14 contingency fee cases because by taking a case on contingency, counsel “assum[es] the 15 risk of receiving nothing for his time and effort[.]” Hearn,

. 16 Thus, none of the factors outlined in Gisbrecht support reducing the fee award and 17 the Court concludes that Counsel's request does not constitute an unfair “windfall.” See 18 Gisbrecht,

. Accordingly, considering the quality of Counsel's 19 representation, the results achieved, and the importance of encouraging attorneys to 20 accept social security cases on a contingency basis, the Court concludes that the fees 21 requested pursuant to section 406(b) are reasonable. 22 23 2 See also Roland S. v. Kijakazi, No. 20-cv-1068,

, at *3 (S.D. Cal. Oct. 20, 2023) (approving an effective hourly rate of $1,438.35); Desiree D. v. Saul, No. 24 19-cv-01522,

, at *3 (S.D. Cal. Apr. 20, 2021) (approving an effective 25 hourly rate of $1,494.34); Marshall v. Saul, No. 16-cv-00666,

, at *3 (S.D. Cal. June 2, 2020) (approving an effective hourly rate of $1,526.75); Martinez v. 26 Saul, No. 15-cv-1994,

, at *2 (S.D. Cal. July 24, 2019) (approving an 27 effective hourly rate of $1,488.83). 1 As Counsel concedes and as described in the Agreement, ECF No. 15-3 at 2 2 ||(Agreement); ECF No. 15 at 5 (instant motion), the $2,600 already awarded as attorney’s 3 || fees under the EAJA shall be refunded to Plaintiff. Gisbrecht,

; ECF No. 4 || 12 at 1 (order granting EAJA attorney’s fees). 5 CONCLUSION 6 The Court therefore GRANTS Counsel’s motion for authorization of attorney’s 7 || fees under 42 U.S.C § 406(b). The Court authorizes that $15,362.56 be paid to Counsel 8 of Plaintiff's past-due benefits in accordance with Social Security Administration 9 || policy. Counsel shall refund Plaintiff $2,600, the amount of attorney’s fees already paid 10 Counsel pursuant to the EAJA. 1] IT IS SO ORDERED. 12 Dated: January 2, 2024 72 st 13 Hon. athe Coke 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 , 28 22-cv-1531-GPC-BLM