Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA 9 10 LISA S.,1 Case No.: 3:22-cv-01644-VET 11 Plaintiff, ORDER GRANTING MOTION FOR 12 v. ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(b) 13 FRANK J. BISIGNANO, Commissioner of Social Security,2 14 [ECF No. 19] Defendant. 15 16 Before the Court is Plaintiff’s counsel’s Motion for Attorney Fees Pursuant to 42 17 U.S.C. § 406(b) (“Motion”). ECF No. 19. Plaintiff’s counsel, Steven G. Rosales 18 (“Counsel”), moves for attorney’s fees in the amount of $11,500, with a credit to Plaintiff 19 Lisa S. (“Plaintiff”) for the Equal Access to Justice Act (“EAJA”) fees previously paid to 20 the Law Offices of Lawrence D. Rohlfing, Inc., CPC (“Counsel’s Firm”) in the amount of 21 $1,500. Id. at 1. Defendant Commissioner of Social Security (“Agency” or 22 “Commissioner”) filed a response (“Response”). ECF No. 20. Having considered the 23 parties’ filings, applicable law, and the record before it, and for the reasons discussed 24 below, the Court GRANTS the Motion. 25 26 27 1 Partially redacted in compliance with Civil Local Rule 7.1(e)(6)(b). 2 Frank J. Bisignano, Commissioner of the Social Security Administration, is 28 1 I. BACKGROUND 2 On October 24, 2022, Plaintiff filed the Complaint seeking judicial review of the 3 Commissioner’s final decision denying disability insurance benefits. ECF No. 1. Prior to 4 the filing of the Complaint, Plaintiff and Counsel entered into a Social Security 5 Representation Agreement (“Fee Agreement”). ECF No. 19-1. Therein, the parties agreed 6 that Counsel’s fee for successful prosecution of this action would be “25% of the past-due 7 benefits awarded upon reversal of any unfavorable ALJ decision for work before the 8 court.” ECF 19-1 at ¶ 4. 9 On March 13, 2023, pursuant to sentence four of 42 U.S.C. § 405(g), the parties 10 jointly moved to remand this action to the Agency for further administrative proceedings. 11 ECF No. 15. On the same day, the Court granted the parties’ request, remanded the action, 12 and ordered that judgment be entered in favor of Plaintiff. ECF No. 16. On June 12, 2023, 13 based on a joint motion, the Court awarded Plaintiff $1,500 in attorney’s fees as authorized 14 by EAJA. ECF Nos. 17–18. On remand, the Commissioner issued a favorable decision and 15 found Plaintiff disabled as of October 20, 2014. ECF No. 19-2 at 11. In a subsequent Notice 16 of Award, the Commissioner awarded Plaintiff $90,471 in past-due benefits and withheld 17 $22,617.75 of the past-due benefits for attorney’s fees. ECF No. 19-3 at 2–3. 18 Counsel now moves for (i) attorney’s fees in the amount of $11,500 pursuant to 42 19 U.S.C. § 406(b) and (ii) an order directing Counsel’s Firm to reimburse Plaintiff $1,500 20 for the EAJA fees previously awarded. ECF No. 19 at 5. Counsel’s Firm expended a total 21 of 7.5 hours, which includes 4.7 hours by Counsel and 2.8 hours by two paralegals, for an 22 effective hourly rate of $1,533.33.3 ECF Nos. 19 at 7, 19-4. The requested fee represents 23 12.71%4 of Plaintiff’s past-due benefits (less than the 25% agreed upon in the Fee 24 25 3 The effective hourly rate was calculated by dividing $11,500 by 7.5 total hours. 26 4 Counsel states he is seeking 50.8% of Plaintiff’s “past[-]due benefits.” See ECF No. 19 27 at 6. This appears to be an error as $11,500 divided by Plaintiff’s past-due benefits of $90,471 equates to 12.71%. The requested $11,500 attorney’s fees is 50.8% of the 28 1 Agreement). In support of his request, Counsel submits the Fee Agreement, the Agency’s 2 Notice of Decision and Notice of Award, dated April 12, 2024 and May 6, 2025, 3 respectively (ECF Nos. 19-2, 19-3), Counsel’s billing statements (ECF No. 19-4), Fiscal 4 Year 2023 Disability Decision Data (ECF No. 19-5), and the U.S. Consumer Law Attorney 5 Fee Survey Report 2017–2018 (ECF No. 19-6). Counsel argues, in part, that an award of 6 $11,500 is reasonable compared to the Commissioner’s withholding of $22,617.75 and fee 7 awards in other cases, and given the results achieved. ECF No. 19 at 5–12. 8 On July 3, 2025, the Commissioner responded that it “neither supports nor opposes 9 Counsel’s request for attorney’s fees under 42 U.S.C. § 406(b),” but requests that the Court 10 direct Counsel to reimburse any fees previously received under EAJA. ECF No. 20 at 3. 11 The Commissioner notes that Counsel worked 4.7 hours representing Plaintiff in this 12 action. Id. at 2. As such, per the Commissioner, attorney’s fees in the amount of $11,500 13 divided by 4.7 hours of work by Counsel would result in a reimbursement rate of $2,446.80 14 per hour worked by Counsel. Id. Plaintiff did not respond to the Motion and nothing in the 15 record indicates that Plaintiff opposes the fee request. See generally ECF. 16 II. LEGAL STANDARD 17 Pursuant to the Social Security Act, “[w]henever a court renders a judgment 18 favorable to a claimant . . . , who was represented before the court by an attorney, the court 19 may determine and allow as part of its judgment a reasonable fee for such representation, 20 not in excess of 25 percent of the total of the past-due benefits to which the claimant is 21 entitled by reason of such judgment.” 42 U.S.C. § 406(b)(1)(A). In contrast to an EAJA 22 award, which is paid by the government to the claimant, an award under Section 406(b) 23 “allows the claimant’s attorney to collect his or her fee out of the claimant’s past-due 24 disability benefits.” Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991). Moreover, 25 attorneys may receive fees under both EAJA and Section 406(b) but must refund to the 26 27 amount withheld by the Commissioner for fees, i.e., $22,617.75, not Plaintiff’s total 28 1 claimant the amount of the smaller fee. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002); 2 Parrish v. Comm’r Soc. Sec. Admin., 698 F.3d 1215, 1218 (9th Cir. 2012). 3 Fee determinations begin by “looking first to the contingent-fee agreement, then 4 testing it for reasonableness.” See Gisbrecht, 535 U.S. at 807–808 (concluding that Section 5 406(b) “does not displace contingent-fee agreements as the primary means by which fees 6 are set for successfully representing Social Security benefits claimants in court,” but rather 7 “calls for court review of such arrangements as an independent check, to assure that they 8 yield reasonable results in particular cases”); see also Crawford v. Astrue, 586 F.3d 1142, 9 1149 (9th Cir. 2009). As such, the 25% statutory maximum fee is not an automatic 10 entitlement, and “[w]ithin the 25 percent boundary . . . , the attorney for the successful 11 claimant must show that the fee sought is reasonable for the services rendered.” Gisbrecht, 12 535 U.S. at 807. In evaluating the reasonableness of an attorney’s fees request, courts 13 should consider “the character of the representation and the results the representative 14 achieved.” Id. at 808. As part of this evaluation, the court may “properly reduce the fee for 15 substandard performance, delay, or benefits that are not in proportion to the time spent on 16 the case,” i.e., the requested fees are excessively large in relation to the benefits achieved. 17 Crawford, 586 F.3d at 1151 (noting there is no definitive list of factors to consider when 18 determining whether a fee is reasonable). Further, as evidence of reasonableness, the court 19 may require counsel to submit a record of hours spent and a statement of normal billing 20 charges. Id. 21 III. DISCUSSION 22 Based on the reasonableness test articulated in Gisbrecht and Crawford, and review 23 of the information submitted in support of the Motion, the Court finds that Counsel’s 24 request for $11,500 in attorney’s fees is reasonable. 25 Beginning with the operative fee agreement, Plaintiff agreed to a fee of 25% of past- 26 due benefits following reversal of any unfavorable ALJ decision. ECF No. 19-1. Because 27 the Court reversed the Commissioner’s unfavorable decision, see ECF No. 16, this fee 28 provision is both applicable and within the statutory limit. See 42 U.S.C. § 406(b)(1)(A). 1 Nevertheless, Counsel voluntarily reduced his fee and seeks $11,500 in attorney’s fees, 2 representing 12.71% of Plaintiff’s total past-due benefits. ECF No. 19 at 1. This amount is 3 also well below the 25% statutory ceiling. 4 Turning next to the character of the representation, there is no evidence in the record 5 of Counsel providing substandard performance. On the contrary, Counsel’s Firm expended 6 a total of 7.5 hours reviewing Plaintiff’s “file,” drafting the Complaint, communicating 7 with Plaintiff, communicating with Agency counsel, and preparing the petition for EAJA 8 fees. See ECF No. 19-4. Within those 7.5 hours, Counsel was able to negotiate a remand 9 and secure reversal of the Commissioner’s decision, ultimately resulting in an award of 10 $90,471 in past-due benefits, plus $1,245 in ongoing monthly disability benefits. See 19-3 11 at 1–2. This is a substantial award and significant benefits for Plaintiff. 12 Also, there is no evidence of delay or dilatory conduct by Counsel. Within five 13 months of Plaintiff initiating suit, and before the Agency answered the Complaint, the 14 parties sought remand and the Court reversed the Commissioner’s decision. ECF Nos. 1, 15 15–16. Although the parties requested a 60-day extension for the Commissioner to answer, 16 the extension was to accommodate the Commissioner, who needed additional time to 17 prepare the administrative record. ECF No. 13-1. Notably, it appears that during this time 18 frame Counsel was actively working with the Agency to secure a remand as the parties 19 jointly sought remand and did so within 13 days of the Commissioner’s initial deadline 20 (February 28, 2023) to answer. See ECF Nos. 13–15, 19-4. 21 The Court further recognizes that a fee request for $11,500 based on 7.5 hours of 22 work reflects an effective hourly rate of $1,533.33. ECF Nos. 19 at 5, 19-4. This figure, 23 however, is consistent with fees awarded in several cases in this District, with hourly rates 24 ranging from $1,438 to $1,990. See, e.g., Luzette B. v. King, No. 23cv483-MSB, 2025 U.S. 25 Dist. LEXIS 19011, at *7 (S.D. Cal. Feb. 3, 2025) (awarding fees representing 20.52% of 26 plaintiff’s past-due benefits for an effective hourly rate of $1,573.03 where counsel spent 27 7.4 hours and the paralegal spent 1.5 hours on plaintiff’s case); Habibullah A. v. Colvin, 28 No. 20cv1971-AGS, 2025 U.S. Dist. LEXIS 14261, at *3 (S.D. Cal. Jan. 27, 2025) 1 (awarding fees representing 23% of plaintiff’s past-due benefits for an effective hourly rate 2 of $1,707.31 where counsel spent 20.5 hours and the paralegal spent 2.6 hours on plaintiff’s 3 case); Watkins v. O’Malley, No. 21cv101-BLM, 2024 U.S. Dist. LEXIS 93524, at *6–8 4 (S.D. Cal. May 24, 2024) (awarding fees representing 25% of plaintiff’s past-due benefits 5 for an effective hourly rate of $1,566 for a combined 20 hours spent by the attorney and 6 paralegal on plaintiff’s case); Roland S. v. Kijakazi, No. 20cv01068-AHG, 2023 U.S. Dist. 7 LEXIS 189176, at *9 (S.D. Cal. Oct. 20, 2023) (awarding fees representing 15.54% of 8 plaintiff’s past-due benefits for an effective hourly rate of $1,438.35 where counsel spent 9 5.36 hours and the paralegal spent 3.4 hours on plaintiff’s case); Reddick v. Berryhill, No. 10 16-CV-29-BTM-BLM, 2019 U.S. Dist. LEXIS 91736, at *5–6 (S.D. Cal. May 30, 2019) 11 (on reconsideration, awarding fees representing 19.45% of plaintiff’s past-due benefits for 12 an effective hourly rate of $1,990.74 where counsel spent 18.2 hours and the paralegal 13 spent 3.4 hours on plaintiff’s case). 14 Moreover, the Court notes that Counsel agreed to the representation on a 15 contingency fee basis, when Plaintiff already had an unfavorable ruling from the 16 Administrative Law Judge. As such, Counsel assumed a substantial risk of not recovering 17 any attorney’s fees. See Ayersman v. Berryhill, No. 17-cv-1121-WQH-JMA, 2021 U.S. 18 Dist. LEXIS 1253, at *6–7 (S.D. Cal. Jan. 5, 2021) (recognizing “there runs a substantial 19 risk of loss” with contingency contracts). Having achieved an excellent outcome for 20 Plaintiff, the Court will not penalize Counsel for his efficiency in this action. Id. at *6–7 21 (“Courts are loathe to penalize experienced counsel for efficient representation under 22 contingency agreements, particularly in the social security context.”). 23 In sum, the Court sees no basis to reduce the fee award requested. As to the EAJA 24 fees, Counsel may not keep attorney’s fees awarded under both EAJA and Section 406(b). 25 Accordingly, Counsel’s Firm shall refund the smaller fee to Plaintiff. Gisbrecht, 535 U.S. 26 at 796. 27 / / / 28 / / / 1 CONCLUSION 2 For the reasons set forth above, the Court GRANTS the Motion (ECF No. 19) and 3 awards the Law Offices of Lawrence D. Rohlfing, Inc., CPC attorney’s fees in the amount 4 || of $11,500. The Court further ORDERS the Law Offices of Lawrence D. Rohlfing, Inc., 5 ||CPC to reimburse Plaintiff the amount of $1,500 for the EAJA fees previously awarded by 6 || this Court. 7 IT IS SO ORDERED. [ Jrr= SK 8 Dated: January 29, 2026 9 Honorable Valerie E. Torres United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28