(SS) Taylor 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 LEE D. TAYLOR Case No. 1:19-cv-00815-HBK 12 Plaintiff, ORDER GRANTING MOTION FOR ATTORNEY'S FEES 13 v. (Doc. No. 16) 14 COMMISSIONER OF SOCIAL SECURITY, ORDER FOR CLERK TO MAIL A COPY OF 15 THIS ORDER TO PLAINTIFF LEE TAYLOR Defendant. 16 17 Steven G. Rosales (“Counsel”) of the Law Offices of Lawrence D. Rohlfing, attorney for 18 Lee D. Taylor (“Plaintiff”), filed a motion for attorney’s fees pursuant to 42 U.S.C. § 406(b) on 19 March 15, 2022. (Doc. No. 16). Plaintiff was served with the motion and advised she had 14 20 days to object. (Id. at 2, 19). 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 $6,500.00 subject to an offset of $1,000.00 in fees already awarded under the Equal Access to 23 Justice Act (EAJA), 28 U.S.C. § 2412(d). (Doc. No. 16). 24 I. BACKGROUND 25 On June 10, 2019, Plaintiff brought the underlying action seeking judicial review of a 26 final administrative decision denying Plaintiff’s claim for disability insurance benefits under the 27 Social Security Act. (Doc. No. 1). On January 21, 2020, the Court granted the parties’ 28 1 stipulation to a voluntary remand pursuant to sentence four of 42 U.S.C. § 405(g). (Doc. Nos. 11, 2 12). The Court entered an award of $1,000.00 for attorney fees under the Equal Access to Justice 3 Act (“EAJA”) on April 17, 2020. (Doc. Nos. 14, 15). After remand, the presiding administrative 4 law judge issued a fully favorable decision awarding Plaintiff benefits on April 6, 2021. (Doc. 5 No. 16-2). Plaintiff was awarded $46,196.00 in retroactive benefits. (Doc. No. 16-3 at 3). 6 On March 17, 2022, Counsel filed this motion for attorney’s fees in the amount of 7 $6,500.00, with an offset of $1,000.00 for EAJA fees already awarded. (Doc. No. 16). To collect 8 those fees, Counsel requests they be sent directly from the Commissioner of Social Security to 9 her law firm, the Law Offices of Lawrence D. Rohlfing. (Id.). Counsel argues these fees are 10 reasonable because the contingency fee agreement, which Plaintiff signed, permits Counsel to 11 retain 25% of the past-due benefits. (Doc. No. 16 at 4-7; Doc. No. 16-1). 12 II. APPLICABLE LAW 13 Attorneys may seek a reasonable fee under the Social Security Act for cases in which they 14 have successfully represented social security claimants. Section 406(b) allows: 15 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 16 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 17 the total of the past-due benefits to which the claimant is entitled … 18 42 U.S.C. § 406(b)(1)(A) (emphasis added). A plaintiff’s counsel may recover attorneys’ fees 19 under both 42 U.S.C. § 406(b) and EAJA. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). The 20 plaintiff’s attorney must, however, refund to the plaintiff the amount of the smaller fee. Id. 21 Fees in social security cases “are usually set in contingency-fee agreements and are 22 payable from past-due benefits awarded to the claimant.” Biggerstaff v. Saul, 840 F. App'x 69, 70 23 (9th Cir. 2020). The fee is not borne by the Commissioner. Crawford v. Astrue, 586 F.3d 1142, 24 1147 (9th Cir. 2009). This provision’s purpose is in part to “ensure that attorneys representing 25 successful claimants would not risk nonpayment of [appropriate] fees.” Gisbrechtt, 535 U.S. at 26 805 (internal quotations omitted). When weighing the adequacy of requested attorney’s fees, 27 Courts should respect “the primacy of lawful attorney-client fee agreements.” Id. at 793. 28 1 Counsel still bears the burden, however, of showing the requested fees are reasonable. Id. at 807. 2 In determining reasonableness, the court may consider the experience of the attorney, the results 3 they achieved, and whether there is evidence the attorney artificially increased the hours worked 4 or the hourly rate charged. Id. at 807-808; Crawford, 586 F.3d at 1151. Any 406(b) award is 5 offset by attorney fees granted under the EAJA. Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 6 1215, 1219 (9th Cir. 2012) 7 III. ANALYSIS 8 Here, Plaintiff signed a fee agreement providing, “the fee for successful prosecution of 9 this matter is 25% of the backpay awarded…” (Doc. No. 16-1). Counsel was ultimately 10 successful in securing $46,196.00 in retroactive benefits for Plaintiff. (Doc. No. 16-3 at 3). In 11 support of this motion, Counsel submitted a time sheet indicating the firm expended 3.3 hours in 12 attorney time and 3.2 hours in paralegal time on this matter. (Doc. No. 16 at 12; Doc. No. 16-4). 13 The time Counsel spent in successfully attaining Plaintiff’s benefits does not appear inflated. 14 Counsel’s request for $6,500 in fees for 6.5 hours of work results in an hourly rate of 15 $1,000 for the combined attorney and paralegal work.1 (Doc. No. 18 at 4). In 2008, the Ninth 16 Circuit found similar hourly rates reasonable in social security contingency fee arrangements. 17 Crawford, 586 F.3d at 1153 (explaining that the majority opinion found reasonable effective 18 hourly rates equaling $519.00, $875.00, and $902.00) (J. Clifton, concurring in part and 19 dissenting in part). More recently, this Court approved an hourly rate of $1,025.22 for paralegal 20 and attorney time. Mayfield v. Comm’r of Soc. Sec., No. 1:16-cv-01084-SAB, ECF No. 24, at 5 21 (E.D. Cal. March 19, 2020). Attorney hourly rates inevitably rise as their experience increases, 22 and counsel has been practicing social security law since 2002. (Doc. No. 16 at 21, ¶15:2-3). 23 The $6,500 sought by Counsel is 14% of the $46,196.00 in retroactive benefits, well below the 24 amount stipulated to in the contingency agreement. The Gisbrecht factors all cut in favor of 25 findings the requested $6,500 to be reasonable. 26 Counsel was previously awarded $1,000.00 in fees pursuant to the EAJA. Because that 27 28 1 Counsel does not disclose his typical hourly rate or the typical hourly rate for the firm’s paralegal. 1 | amount must be subtracted from the requested attorney’s fees, the Court will order an award of 2 || $5,500.00. 3 Accordingly, it is ORDERED: 4 1. Plaintiffs motion for an award of attorney’s fees is GRANTED (Doc. No. 16). The 5 | Commissioner shall certify a net fee of $5,500.00 to Counsel Steven G. Rosales. 6 2. Pursuant to Counsel’s request, this amount shall be paid directly to the Law Offices of 7 | Lawrence D. Rohlfing, Inc., CPC by the Commissioner from the remainder of the benefits due to 8 | Plaintiff. 9 3. The Clerk of the Court is respectfully directed to serve a copy of this order on Lee D. 10 | Taylor, 618 Woodrow Street, Taft, CA 93268. 11 | Dated: __April 12, 2022 Mihaw. fareh Zack 13 HELENA M. BARCH-KUCHTA 4 UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28