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

1 UNITED STATES DISTRICT COURT 2 EASTERN DISTRICT OF CALIFORNIA 3 4 ESBEYDE ESPINOZA TAMAYO, CASE NO. 1:19-cv-00317-GSA 5 Plaintiff, 6 ORDER GRANTING MOTION FOR ATTORNEY v. FEES PURSUANT TO 42 U.S.C. 406(b) 7 (Doc. 26) 8 KILOLO KIJAKAZI, acting Commissioner of Social Security, 9 Defendant. 10 11 Laura E. Krank (The Law Offices of Lawrence D. Rohlfing, Inc., CPC), counsel for Esbeyde 12 Espinoza Tamayo, seeks an award of attorney fees pursuant to 42 U.S.C. § 406(b). Plaintiff was served a 13 copy of the motion on June 30, 2022 by mail with instruction to respond, if at all, within 14 days of 14 Plaintiff’s receipt thereof. Doc. 26 at 24. Plaintiff did not file a response. Defendant responded to the 15 motion summarizing the applicable law but providing no opposition thereto. For the reasons below, the 16 motion will be granted. 17 I. Background 18 Plaintiff entered into a contingent fee agreement with counsel which provides for attorney fees of 19 25% of the past due benefits awarded. Doc. 26-1. The agreement also provides that counsel would seek 20 fees pursuant to the Equal Access to Justice Act (EAJA), fees which would be refunded in the event of an 21 award of past due benefits and payment of the 25% contingency fee. Id. 22 On March 8, 2019 Plaintiff filed a complaint for review of the administrative decision denying 23 Plaintiff’s application for benefits. Doc. 1. The parties exchanged confidential letter briefing and Plaintiff 24 filed an opening brief, after which the parties stipulated to remand the matter to the agency for further 25 proceedings. Docs. 13-22. The parties also stipulated to payment of EAJA fees in an amount of $3,000. 26 Doc. 25. On remand the agency determined that Plaintiff was disabled and entitled to past due benefits 27 effective October 2015 yielding a total past due benefit amount of $84,857. Doc. 26-3 at 3. From the past 1 due benefit amount, the agency withheld 25% for potential payment to counsel. The withheld amount was 2 $21,214, of which counsel seeks $12,000. Id. 3 II. Legal Standard 4 An attorney may seek an award of fees for representation of a Social Security claimant who is 5 awarded benefits: 6 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 and allow 7 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 reason of such 8 judgment . . . 9 42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) 10 controls fees awarded for representation of Social Security claimants). A contingency fee agreement is 11 unenforceable by the Court if it provides for fees exceeding the statutory amount. Gisbrecht, 535 U.S. at 12 807 (“Congress has provided one boundary line: Agreements are unenforceable to the extent that they 13 provide for fees exceeding 25 percent of the past-due benefits.”). 14 District courts “have been deferential to the terms of contingency fee contracts § 406(b) cases.” 15 Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). However, the Court must review 16 contingent-fee arrangements “as an independent check, to assure that they yield reasonable results in 17 particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, the Court should consider “the character of the 18 representation and the results the representative achieved.” Id. at 808. In addition, the Court should 19 consider whether the attorney performed in a substandard manner or engaged in dilatory conduct or 20 excessive delays, and whether the fees are “excessively large in relation to the benefits received.” 21 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc); Vazquez v. Com'r of Soc. Sec., No. 22 1:17-CV-1646-JLT, 2020 WL 2793059, at *2 (E.D. Cal. May 29, 2020). 23 III. Analysis 24 Here, Plaintiff was represented by experienced counsel and achieved a favorable result, namely a 25 stipulation to remand, entry of judgment, and ultimately a substantial award of past due benefits. There 26 is no indication that counsel engaged in dilatory conduct, excessive delay, or substandard performance. 27 Counsel’s itemized bill reflects 16.9 hours of time spent reviewing the administrative transcript, drafting 1 a confidential letter brief, and drafting an opening brief, which the court finds is a reasonable amount of 2 time for performance of those tasks. Counsel seeks $12,000 in compensation of the $21,214 withheld 3 based on 16.9 hours of work, resulting in an effective hourly rate of $710. Although counsel’s time 4 expenditure was modest, the fee award would not amount to a windfall. Unlike fee motions governed 5 entirely by the lodestar method, in contingency fee matters pursuant to section 406(b) the lodestar is 6 merely a guidepost, and a comparatively high effective hourly rate is generally warranted to compensate 7 counsel for the risk assumed in representing social security claimants. See Crawford v. Astrue, 586 F.3d 8 1142, 1148 (9th Cir. 2009). 9 Moreover, the $710 effective hourly rate sought here is lower than the rates approved by other 10 courts under section 406(b). See, e.g., Williams v. Berryhill, No. EDCV 15-919-KK, 2018 WL 6333695, 11 at *2 (C.D. Cal. Nov. 13, 2018) (effective hourly rate of $1,553.36); Coles v. Berryhill, No. EDCV 14- 12 1488-KK, 2018 WL 3104502, at *3 (C.D. Cal. June 21, 2018) (effective hourly rate of $1,431.94); Palos 13 v. Colvin, No. CV 15-04261-DTB, 2016 WL 5110243, at *2 (C.D. Cal. Sept. 20, 2016) ($1,546.39 per 14 hour). 15 The $12,000 total amount is also consistent with total contingent fee awards granted under section 16 406(b). See, e.g., Ortega v. Comm'r of Soc. Sec., No. 1:12–cv–01030–AWI–SAB, 2015 WL 5021646, at 17 *3 (E.D. Cal. Aug. 21, 2015) ($24,350); Thomas v. Colvin, No. 1:11–cv–01291–SKO, 2015 WL 1529331, 18 at *3 (E.D. Cal. Apr. 3, 2015) ($44,603.50); Boyle v. Colvin, No. 1:12–cv–00954–SMS, 2013 WL 19 6712552, at *2 (E.D. Cal. Dec. 19, 2013) ($20,577.57); Jamieson v. Astrue, No. 1:09-cv-00490-LJO-DLB, 20 2011 WL 587096, at *2 (E.D. Cal. Feb. 9, 2011) ($34,500). 21 Considering the character of the representation, the result achieved, and the fee amounts awarded 22 in similar cases, the request here is reasonable. 23 Accordingly, it is ORDERED as follows: 24 1. Counsel’s motion for attorney fees pursuant to 42 U.S.C. 406(b) (Doc. 26) is granted. 25 2. The Commissioner shall certify a payment of a gross award in the amount of $12,000 26 to the Law Offices of Lawrence D. Rohlfing, Inc., CPC. 27 3. The Law Offices of Lawrence D. Rohlfing, Inc., CPC shall refund to Plaintiff EAJA fees 1 2 IT IS SO ORDERED. 3 Dated: November 8, 2022 /s/ Gary S. Austin 4 UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27