(SS) De Romero v. Commissioner of Social Security ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MERCEDES MORALES DE ROMERO, ) Case No.: 1:17-cv-01508- JLT ) 12 Plaintiff, ) ORDER GRANTING COUNSEL’S MOTION ) FOR ATTORNEY FEES PURSUANT TO 13 v. ) 42 U.S.C. § 406(b) ) 14 ANDREW M. SAUL1, ) (Doc. 22) Commissioner of Social Security, ) 15 ) Defendant. ) 16 17 Lawrence D. Rohlfing, counsel for Plaintiff Mercedes Morales De Romero, seeks an award of 18 attorney fees pursuant to 42 U.S.C. § 406(b). (Doc. 22) Neither Plaintiff nor the Commissioner of 19 Social Security oppose the motion.2 For the following reasons, the motion for attorney fees is 20 GRANTED. 21 I. Relevant Background 22 Plaintiff entered into a contingent fee agreement with the Law Offices of Lawrence D. Rohlfing 23 on October 9, 2017. (Doc. 22-1) The agreement entitled counsel to an award of “25% of the past due 24 benefits awarded” if judicial review of an administrative decision was required, and the adverse 25 decision of an ALJ was reversed. (Id. at 1) The agreement also required counsel to “seek compensation 26 1 This action was originally brought against Nancy A. Berryhill in her capacity as then-Acting Commissioner. 27 (See Doc. 1) Andrew M. Saul, the newly-appointed Commissioner, has been automatically substituted as the defendant in this action. See Fed. R. Civ. P. 25(d). 28 2 The Commissioner filed a response to the motion, in which he offered an “analysis of the requested fees” but 1 under the Equal Access to Justice Act,” and the amount awarded would be credited to Plaintiff “for fees 2 otherwise payable for court work.” (Id.) 3 On November 8, 2017, Plaintiff filed a complaint for review of the administrative decision 4 denying her application for Social Security benefits. (Doc. 1) The Court found the ALJ failed to 5 support his findings regarding Plaintiff’s language and did not address apparent conflicts between two 6 vocational resources. Therefore, the Court remanded the matter for further proceedings pursuant to 7 sentence four of 42 U.S.C. § 405(g). (See Doc. 18) Following the entry of judgment in favor of 8 Plaintiff (Doc. 19), the Court awarded $3,300 in attorney fees pursuant to the Equal Access to Justice 9 Act. (Doc. 21 at 1) 10 Upon remand, an ALJ issued a “fully favorable” decision, finding Plaintiff was disabled 11 beginning September 11, 2015. (Doc. 22-2 at 1, 12) On December 14, 2019, the Social Security 12 Administration concluded Plaintiff was entitled to monthly benefits from Social Security beginning 13 March 2016. (Doc. 21-3 at 1) In total, Plaintiff was entitled to $42,250.52 in past-due benefits, from 14 which the Commissioner withheld $10,312.63 for payment of Plaintiff’s attorney’s fees. (Doc. 22 at 3; 15 Doc. 22- at 3) 16 Mr. Rohlfing filed the motion now before the Court on January 2, 2020, seeking fees in the 17 amount of $7,612.63. (Doc. 21) Mr. Rohlfing served Plaintiff with the motion and informed her of the 18 right to file a response to indicate whether she agreed or disagreed with the requested fees. (Id. at 2, 11) 19 Plaintiff has not opposed the motion. 20 II. Attorney Fees under § 406(b) 21 An attorney may seek an award of fees for representation of a Social Security claimant who is 22 awarded benefits: 23 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 24 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 25 entitled by reason of such judgment. . . . 26 42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) 27 controls fees awarded for representation of Social Security claimants). 28 A contingency fee agreement is unenforceable if it provides for fees exceeding the statutory 1 amount. Gisbrecht, 535 U.S. at 807 (“Congress has provided one boundary line: Agreements are 2 unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits.”). 3 III. Discussion and Analysis 4 District courts “have been deferential to the terms of contingency fee contracts § 406(b) cases.” 5 Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). However, the Court must review 6 contingent-fee arrangements “as an independent check, to assure that they yield reasonable results in 7 particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, the Court should consider “the character of 8 the representation and the results the representative achieved.” Id. at 808. In addition, the Court should 9 consider whether the attorney performed in a substandard manner or engaged in dilatory conduct or 10 excessive delays, and whether the fees are “excessively large in relation to the benefits received.” 11 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc). 12 Plaintiff entered into the contingent fee agreement in which she agreed to pay twenty-five 13 percent of any awarded past-due benefits. (Doc. 22-1 at 1) The Law Offices of Lawrence D. Rohlfing 14 accepted the risk of loss in the representation and expended a total of 18.4 hours while representing 15 Plaintiff before the District Court. (Doc. 22 at 3; Doc. 22-4 at 1-2) Due to counsel’s work, the action 16 was remanded further proceedings, and Plaintiff received a fully favorable decision. For this, Mr. 17 Rohlfing requests a fee of $ 7,612.63. (Doc. 22 at 3) Because $3,300.00 was previously paid under the 18 EAJA, the net cost to Plaintiff is $4,312.63. Finally, though served with the motion and informed of 19 the right to oppose the fee request (Doc. 22 at 2, 11), Plaintiff did not file oppose the request and 20 thereby indicates her implicit belief that the fee request is reasonable. 21 Significantly, there is no indication that counsel performed in a substandard manner or engaged 22 in severe dilatory conduct. Plaintiff was able to secure a remand for payment of benefits following her 23 appeal, including an award of past-due benefits. Finally, the fees requested are approximately ten 24 percent of the past-due benefits, and do not exceed twenty-five percent maximum permitted under 42 25 U.S.C. §406(b), or the amount withheld by the administration for payment of fees. 26 IV. Conclusion and Order 27 Based upon the tasks completed and results achieved following the remand for further 28 proceedings, the Court finds the fees sought by Mr. Rohlfing and the Law Offices of Lawrence D. 1 Rohlfing are reasonable. Accordingly, the Court ORDERS: 2 1. Counsel’s motion for attorney fees pursuant to 24 U.S.C. §406(b) in the amount of 3 $7,612.63 is GRANTED; 4 2. The Commissioner shall pay the amount directly to Counsel, the Law Offices of 5 Lawrence D. Rohlfing; and 6 3. Counsel SHALL refund $3,300.00 to Plaintiff Mercedes Morales De Romero. 7 8 IT IS SO ORDERED. 9 Dated: February 7, 2020 /s/ Jennifer L. Thurston 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28