(SS) Chernick v. Commissioner of Social Security ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DEBORAH CHERNICK, Case No. 1:19-cv-160-HBK 12 Plaintiff, ORDER GRANTING MOTION FOR ATTORNEY FEES 13 v. (Doc. No. 29) 14 KILOLO KIJAKAZI, 15 Defendant. 16 17 Matthew F. Holmberg (“Counsel”) of the Law Offices of Lawrence D. Rohlfing, attorney 18 for Deborah Chernick (“Plaintiff”), moved on December 17, 2021, for attorney’s fees pursuant to 19 42 U.S.C. § 1383(d)(2)(B). (Doc. No. 29). Plaintiff was served with the motion and told she had 20 14 days to object. (Id. at 2). No opposition has been filed as of the date of this Order. (See 21 docket). For the reasons set forth below, the motion for attorney’s fees is granted in the amount 22 of $8,000.00 subject to an offset of $3,300.00 in fees already awarded under the Equal Access to 23 Justice Act (EAJA), 28 U.S.C. § 2412(d). 24 I. BACKGROUND 25 On February 5, 2019, Plaintiff brought the underlying action seeking judicial review of a 26 final administrative decision denying Plaintiff’s claim for supplemental security income benefits 27 under the Social Security Act. (Doc. No. 1). On June 30, 2020, after hearing oral argument on 28 the matter, the Court entered an order remanding the case to an administrative law judge for 1 further review. (Doc. No. 24). After remand, the presiding administrative law judge issued a 2 fully favorable decision awarding Plaintiff benefits on December 23, 2020. (Doc. No. 29-2; 29- 3 3). Plaintiff was awarded $41,600.68 in retroactive benefits. (Doc. No. 229-3). 4 On December 17, 2021, Counsel filed this motion seeking attorney’s fees in the amount of 5 $8,000.00, with an offset of $3,300.00 for EAJA fees already awarded. (Doc. No. 29). To collect 6 those fees, Counsel requests they be sent directly from the Commissioner of Social Security to 7 her law firm, the Law Offices of Lawrence D. Rohlfing. Counsel argues these fees are 8 reasonable because the contingency fee agreement, which Plaintiff signed, permits Counsel to 9 retain 25% of the past-due benefits. 10 II. APPLICABLE LAW 11 Attorneys may seek a reasonable fee under the Social Security Act for cases in which they 12 have successfully represented social security claimants. Section 406(b) allows: 13 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 14 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 15 the total of the past-due benefits to which the claimant is entitled … 16 42 U.S.C. § 406(b)(1)(A) (emphasis added). 17 A plaintiff’s counsel may recover attorneys’ fees under both 42 U.S.C. § 406(b) and 18 EAJA. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). The plaintiff’s attorney must, however, 19 refund to the plaintiff the amount of the smaller fee. Id. 20 Fees in social security cases “are usually set in contingency-fee agreements and are 21 payable from past-due benefits awarded to the claimant.” Biggerstaff v. Saul, 840 F. App'x 69, 70 22 (9th Cir. 2020). The fee is not borne by the Commissioner. Crawford v. Astrue, 586 F.3d 1142, 23 1147 (9th Cir. 2009). This provision’s purpose is in part to “ensure that attorneys representing 24 successful claimants would not risk nonpayment of [appropriate] fees.” Gisbrechtt, 535 U.S. at 25 805 (internal quotations omitted). When weighing the adequacy of requested attorney’s fees, 26 Courts should respect “the primacy of lawful attorney-client fee agreements.” Id. at 793. 27 Counsel still bears the burden, however, of showing the requested fees are reasonable. Id. at 807. 28 1 In determining reasonableness, the court may consider the experience of the attorney, the results 2 they achieved, and whether there is evidence the attorney artificially increased the hours worked 3 or the hourly rate charged. Id. at 807-808; Crawford, 586 F.3d at 1151. Any 406(b) award is 4 offset by attorney fees granted under the EAJA. Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 5 1215, 1219 (9th Cir. 2012) 6 III. ANALYSIS 7 Here, Plaintiff signed a fee agreement providing, “the fee for successful prosecution of 8 this matter is 25% of the past due benefits awarded.” (Doc. No. 29-1 at 1, ¶ 3). Counsel was 9 ultimately successful in securing $41,600.00 in retroactive benefits for Plaintiff. (Doc. No. 29-3). 10 In support of this motion, Counsel submitted a declaration attesting that his firm expended 14.42 11 hours in attorney and paralegal time on this matter with supporting documentation. (Doc. No. 29. 12 at 12-13; 29-4). The time Counsel spent in successfully attaining Plaintiff’s benefits does not 13 appear inflated. 14 Counsel’s request for $8,000.00 in fees for fourteen hours of work results in an hourly rate 15 of $554.78 for the combined attorney and paralegal work.1 In 2008, the Ninth Circuit found 16 similar hourly rates reasonable in social security contingency fee arrangements. Crawford, 586 17 F.3d at 1153 (explaining that the majority opinion found reasonable effective hourly rates 18 equaling $519.00, $875.00, and $902.00) (J. Clifton, concurring in part and dissenting in part). 19 More recently, this Court approved an hourly rate of $1,025.22 for paralegal and attorney time. 20 Mayfield v. Comm’r of Soc. Sec., No. 1:16-cv-01084-SAB, ECF No. 24, at 5 (E.D. Cal. March 19, 21 2020). Attorney hourly rates inevitably rise as their experience increases, and counsel has been 22 practicing social security law since 2018. (Doc. No. 29 at 13, ¶6). The $8,000.00 sought by 23 Counsel is 19.23% of the $41,600.68 in retroactive benefits, below the amount stipulated to in the 24 contingency agreement. The Gisbrecht factors all cut in favor of findings the requested $8,000.00 25 to be reasonable. 26 Counsel was previously awarded $3,300.00 in EAJA fees. (Doc. No. 28). Because that 27 28 1 Counsel does not indicate their typical hourly rate or the typical hourly rate for their paralegal. 1 | amount must be subtracted from the requested attorney’s fees, the Court will order an award of 2 | $4,700.00. 3 Accordingly, it is ORDERED: 4 1. Plaintiffs Counsel’s motion for an award of attorney’s fees is GRANTED. (Doc. No. 5 | 29). The Commissioner shall certify a net fee of $4,700.00 to Matthew F. Holmberg. 6 2. Pursuant to Counsel’s request, this amount shall be paid directly to the Law Offices of 7 | Lawrence D. Rohlfing by the Commissioner from the remainder of the benefits due to Plaintiff. 8 3. The Clerk of the Court is respectfully directed to serve a copy of this order on Deborah 9 | Chernick, PO Box 650, Wofford Heights, Fresno, CA 93285. 10 "| Dated: __February 24, 2022 Wile. Wh. arch Yack 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28