(SS) Sabrina Patrice Thomas Gibson v. Commissioner of Social Security ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SABRINA PATRICE THOMAS GIBSON, Case No. 1:19-cv-00563-HBK 12 Plaintiff, ORDER GRANTING COUNSEL’S UNOPPOSED MOTION FOR ATTORNEY'S 13 v. FEES 14 COMMISSIONER OF SOCIAL (Doc. No. 16) SECURITY, 15 ORDER FOR CLERK TO MAIL A COPY OF Defendant. THIS ORDER TO PLAINTIFF 16 17 18 Young Chul Cho (“Counsel”) of the Law Offices of Lawrence D. Rohlfing, attorney for 19 Sabrina Patrice Thomas Gibson (“Plaintiff”), moved on March 26, 2021 for attorney’s fees 20 pursuant to 42 U.S.C. § 406(b). (Doc. No. 16). Plaintiff was served with the motion and told she 21 had 14 days to object. (Id. at 2, 13). No opposition has been filed as of the date of this Order. 22 (See docket). For the reasons set forth below, the motion for attorney’s fees is granted in the 23 amount of $8,091.00 subject to an offset of $1,700.00 in fees already awarded on January 30, 24 2020, pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). (Doc. No. 15). 25 I. BACKGROUND 26 On April 30, 2019, Plaintiff brought the underlying action seeking judicial review of a 27 final administrative decision denying Plaintiff’s claim for supplemental security income benefits 28 under the Social Security Act. (Doc. No. 1). On November 25, 2019, the Court granted the 1 Parties’ stipulation to a voluntary remand pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. 2 Nos. 11, 12). The Court entered an award of $1,700.00 for attorney fees under the Equal Access 3 to Justice Act (“EAJA”) on January 30, 2020. (Doc. No. 15). After remand, the presiding 4 administrative law judge issued a fully favorable decision awarding Plaintiff benefits on 5 December 23, 2020. (Doc. No. 16-2). Plaintiff was awarded $56,365.36 in retroactive benefits. 6 (Doc. No. 16-3 at 3). 7 On March 26, 2021, Counsel filed this motion for attorney’s fees in the amount of 8 $8,091.00, with an offset of $1,700.00 for EAJA fees already awarded. (Doc. No. 16). To collect 9 those fees, Counsel requests they be sent directly from the Commissioner of Social Security to 10 her law firm, the Law Offices of Lawrence D. Rohlfing. (Id.). Counsel argues these fees are 11 reasonable because the contingency fee agreement, which Plaintiff signed, permits Counsel to 12 retain 25% of the past-due benefits. (Doc. No. 16 at 4-5; Doc. No. 16-1). 13 II. APPLICABLE LAW 14 Attorneys may seek a reasonable fee under the Social Security Act for cases in which they 15 have successfully represented social security claimants. Section 406(b) allows: 16 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 17 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 18 the total of the past-due benefits to which the claimant is entitled … 19 42 U.S.C. § 406(b)(1)(A) (emphasis added). 20 A plaintiff’s counsel may recover attorneys’ fees under both 42 U.S.C. § 406(b) and 21 EAJA. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). The plaintiff’s attorney must, however, 22 refund to the plaintiff the amount of the smaller fee. Id. 23 Fees in social security cases “are usually set in contingency-fee agreements and are 24 payable from past-due benefits awarded to the claimant.” Biggerstaff v. Saul, 840 F. App'x 69, 70 25 (9th Cir. 2020). The fee is not borne by the Commissioner. Crawford v. Astrue, 586 F.3d 1142, 26 1147 (9th Cir. 2009). This provision’s purpose is in part to “ensure that attorneys representing 27 successful claimants would not risk nonpayment of [appropriate] fees.” Gisbrechtt, 535 U.S. at 28 1 805 (internal quotations omitted). When weighing the adequacy of requested attorney’s fees, 2 Courts should respect “the primacy of lawful attorney-client fee agreements.” Id. at 793. 3 Counsel still bears the burden, however, of showing the requested fees are reasonable. Id. at 807. 4 In determining reasonableness, the court may consider the experience of the attorney, the results 5 they achieved, and whether there is evidence the attorney artificially increased the hours worked 6 or the hourly rate charged. Id. at 807-808; Crawford, 586 F.3d at 1151. Any 406(b) award is 7 offset by attorney fees granted under the EAJA. Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 8 1215, 1219 (9th Cir. 2012) 9 III. ANALYSIS 10 Here, Plaintiff signed a fee agreement providing, “the fee for successful prosecution of 11 this matter is 25% of the past due benefits awarded.” (Doc. No. 16-1). Counsel was ultimately 12 successful in securing $56,365.36 in retroactive benefits for Plaintiff. (Doc. No. 16-3 at 3). In 13 support of this motion, Counsel submitted a time sheet indicating they expended 6.5 hours in 14 attorney time and 3.5 hours in paralegal time on this matter. (Doc. No. 16 at 11; Doc. No. 16-4). 15 The time Counsel spent in successfully attaining Plaintiff’s benefits does not appear inflated. 16 Counsel’s request for $8,091.00 in fees for ten hours of work results in an hourly rate of 17 $809.10 for the combined attorney and paralegal work.1 In 2008, the Ninth Circuit found similar 18 hourly rates reasonable in social security contingency fee arrangements. Crawford, 586 F.3d at 19 1153 (explaining that the majority opinion found reasonable effective hourly rates equaling 20 $519.00, $875.00, and $902.00) (J. Clifton, concurring in part and dissenting in part). More 21 recently, this Court approved an hourly rate of $1,025.22 for paralegal and attorney time. 22 Mayfield v. Comm’r of Soc. Sec., No. 1:16-cv-01084-SAB, ECF No. 24, at 5 (E.D. Cal. March 19, 23 2020). Attorney hourly rates inevitably rise as their experience increases, and Plaintiff has been 24 working as a social security lawyer for over twenty years. (Doc. No. 16 at 12). The $8,091.00 25 sought by Counsel is 14.4% of the $56,365.36 in retroactive benefits, well below the amount 26 stipulated to in the contingency agreement. The Gisbrecht factors all cut in favor of findings the 27 28 1 Counsel does not indicate their typical hourly rate or the typical hourly rate for their paralegal. 1 | requested $8,091.00 to be reasonable. 2 Counsel was previously awarded $1,700.00 in fees pursuant to the EAJA. Because that 3 | amount must be subtracted from the requested attorney’s fees, the Court will order an award of 4 | $6,391.00. 5 Accordingly, it is ORDERED: 6 1. Plaintiffs Counsel’s motion for an award of attorney’s fees pursuant to 42 U.S.C. 7 | § 406(b) is GRANTED (Doc. No. 16). Counsel is awarded $6,391.00 in attorney fees. 8 2. Pursuant to Counsel’s request, this amount shall be paid directly to the Law Offices of 9 | Lawrence D. Rohlfing by the Commissioner from the remainder of the benefits due to Plaintiff. 10 3. The Clerk of the Court is respectfully directed to serve a copy of this order on Sabrina 11 || Patrice Thomas Gibson, 5388 West Donner Avenue, Fresno, CA 93722. 12 3 IT IS SO ORDERED. pated: tune 28, 2021 Mila Nh. fareh Base □□□ 15 HELENA M. BARCH-KUCHTA 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28