(SS) Urrabazo v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID MALDONADO URRABAZO, ) Case No.: 1:19-cv-0248 JLT ) 12 Plaintiff, ) ORDER GRANTING COUNSEL’S MOTION ) FOR ATTORNEY FEES PURSUANT TO 13 v. ) 42 U.S.C. § 406(b) ) 14 KILOLO KIJAKAZI1, ) (Doc. 25) Acting Commissioner of Social Security, ) 15 ) Defendant. ) 16 17 Young Cho, counsel for Plaintiff David Maldonado Urrabazo, seeks an award of attorney fees 18 in the amount of $22,000.00 pursuant to 42 U.S.C. § 406(b). (Doc. 25.) Neither Plaintiff nor the 19 Commissioner of Social Security have opposed the motion. For the following reasons, the motion for 20 attorney fees is GRANTED. 21 I. Relevant Background 22 Plaintiff entered into a “Social Security Representation Agreement” with the Law Offices of 23 Lawrence D. Rohlfing on February 19, 2019. (Doc. 25-1 at 1.) In the agreement, Plaintiff indicated 24 that if he was awarded benefits after judicial review and remand for further proceedings, the Law 25 Offices of Lawrence D. Rohlfing was authorized to seek fees under the Equal Access to Justice Act in 26 27 1 This action was originally filed against Andrew Saul in his capacity as the Commissioner of Social Security. (See Doc. 1 at 1.) The Court has substituted Kilolo Kijakazi, who has since been appointed the Acting Commissioner of 28 Social Security, as the defendant. See Fed. R. Civ. P. 25(d). 1 an amount up to “25% of the past due benefits awarded.” (Id.) The agreement also indicated counsel 2 could seek fees for work done before the Court prior to remand, and any amount awarded would be 3 reimbursed to Plaintiff if fees were also paid from the past due benefits. (Id.) 4 On February 20, 2019, Plaintiff filed a complaint for review of the partially favorable 5 administrative decision regarding his application for Social Security benefits. (Doc. 1.) The Court 6 found the administrative law judge failed to apply the proper legal standards in evaluating the 7 credibility of Plaintiff’s subjective complaints and erred in the determination of Plaintiff’s disability 8 onset date. (Doc. 21 at 5-11.) Thus, the Court remanded the matter for further proceedings pursuant to 9 sentence four of 42 U.S.C. § 405(g) on May 11, 2020. (Id. at 11.) Following the entry of judgment in 10 favor of Plaintiff, the Court awarded $4,200.00 in attorney fees pursuant to the Equal Access to Justice 11 Act. (Doc. 23; Doc. 24 at 1.) 12 Upon remand, an ALJ determined Plaintiff was disabled beginning September 11, 2010, and 13 issued a fully favorable decision on April 13, 2021. (Doc. 25-2 at 1-9.) The Administration found 14 Plaintiff was entitled to benefits beginning in March 2011, and was owed past-due benefits in the total 15 amount of $129,226.00. (Doc. 25-3 at 1; Doc. 25 at 3.) From this total, the Administration withheld 16 $32,306.50 for the payment of attorney fees. (Doc. 25-3 at 3.) 17 Counsel filed the motion now before the Court on July 22, 2021, seeking fees in the amount of 18 $22,000.00. (Doc. 25.) However, Mr. Cho notes the net fee to Plaintiff is $17,800.00, due to the 19 amount previously approved under the EAJA. (Id. at 1.) Plaintiff was served with the motion by U.S. 20 mail on July 22, 2021, and notified that he may oppose the motion in writing within fourteen days of 21 the date of service. (Id. at 2, 14.) To date, Plaintiff has not filed an opposition, or otherwise responded 22 to the motion for fees. 23 II. Attorney Fees under § 406(b) 24 An attorney may seek an award of fees for representation of a Social Security claimant who is 25 awarded benefits: 26 Whenever a court renders a judgment favorable to a claimant under [42 USC § 401, et seq] who was represented before the court by an attorney, the court may determine 27 and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by 28 reason of such judgment. . . . 1 42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) 2 controls fees awarded for representation of Social Security claimants). 3 As the Ninth Circuit observed, “virtually all attorneys charge a contingency fee” in Social 4 Security cases. Crawford v. Astrue, 586. F.3d 1142, 1155 (9th Cir. 2009). District courts “have been 5 deferential to the terms of contingency fee contracts § 406(b) cases.” Hern v. Barnhart, 262 F.Supp.2d 6 1033, 1037 (N.D. Cal. 2003). Nevertheless, the Court must review contingent-fee arrangements “as an 7 independent check, to assure that they yield reasonable results in particular cases.” Gisbrecht, 535 U.S. 8 at 807. A contingency fee agreement is unenforceable if it provides for fees exceeding the statutory 9 amount of 25 percent. Id. (“Congress has provided one boundary line: Agreements are unenforceable 10 to the extent that they provide for fees exceeding 25 percent of the past-due benefits.”); see also 11 Crawford, 586. F.3d at 1155 (“42 U.S.C. § 406(b) sets the maximum percentage that may be charged 12 for representing a claimant in district court at 25 percent of past benefits recovered). 13 III. Discussion and Analysis 14 In evaluating a fee requested pursuant to a contingency agreement, the Court should consider 15 “the character of the representation and the results the representative achieved.” Gisbrecht, 535 U.S. at 16 808. In addition, the Court should consider whether the attorney performed in a substandard manner or 17 engaged in dilatory conduct or excessive delays, and whether the fees are “excessively large in relation 18 to the benefits received.” Crawford, 586 F.3d at 1149. 19 Plaintiff entered into the contingent fee agreement in which he agreed to pay twenty-five 20 percent of any awarded past-due benefits. (Doc. 25-1 at 1.) Counsel accepted the risk of loss in the 21 representation and expended a total of 22.4 hours while representing Plaintiff before the District Court. 22 (Doc. 25 at 12, Cho Decl. ¶ 5; Doc. 25-4 at 1-2.) Tasks undertaken included reviewing the 23 administrative record, which was more than 1,100 pages; legal research regarding the issues presented; 24 and preparation of the complaint, confidential letter brief, and opening brief. (See Doc. 25-4 at 1-2.) 25 Due to counsel’s work, the action was remanded further proceedings, and Plaintiff received a fully 26 favorable decision from the Social Security Administration. For this, Mr. Cho requests a fee of 27 $22,000.00, which is approximately 17% of the past-due benefits owed to Plaintiff. (Doc. 25 at 4.) 28 Because Mr. Cho requests that the Court deduct the amount previously approved under the EAJA, the 1 net cost to Plaintiff is $17,800.00. (Id. at 10.) Finally, although served with the motion (id. at 14), 2 Plaintiff did not oppose the request and thereby indicates an implicit belief that the total amount 3 requested for attorney fees is reasonable. 4 Significantly, there is no indication that counsel performed in a substandard manner or engaged 5 in severe dilatory conduct. Plaintiff was able to secure a remand for payment of benefits following the 6 appeal, including an award of past-due benefits beginning March 2011. (See Doc. 25-3 at 1.) Finally, 7 the fees requested do not exceed twenty-five percent maximum permitted under 42 U.S.C. §406(b) or 8 the amount agreed upon by counsel and Plaintiff. (See Doc. 25-1 at 1.) 9 IV. Conclusion and Order 10 Based upon the tasks completed and results achieved following the remand for further 11 proceedings, the Court finds the fees sought by Mr. Cho and the Law Offices of Lawrence D. Rohfling 12 are reasonable. Accordingly, the Court ORDERS: 13 1. Counsel’s motion for attorney fees pursuant to 24 U.S.C. §406(b) (Doc. 25) is 14 GRANTED; 15 2. The Commissioner SHALL pay $22,000.00 directly to Counsel, and the Law Offices 16 of Lawrence D. Rohfling are reasonable, out of the funds being withheld; 17 3. Any remaining funds being held by the Administration SHALL be released to Plaintiff 18 David Maldonado Urrabazo; and 19 4. Once payment is received for the fees awarded under the EAJA and Section 406(b), 20 counsel SHALL refund $4,200.00 to Plaintiff. 21 22 IT IS SO ORDERED. 23 Dated: August 18, 2021 _ /s/ Jennifer L. Thurston 24 CHIEF UNITED STATES MAGISTRATE JUDGE 25 26 27 28