Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MYIESHA P.,1 Case No.: 3:22-cv-01577-VET 12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. ATTORNEY FEES PURSUANT TO 14 42 U.S.C. § 406(b) FRANK J. BISIGNANO, Commissioner 15 of Social Security,2 16 Defendant. [ECF No. 36] 17 18 19 Before the court is Plaintiff’s counsel’s Motion for Attorney Fees Pursuant to 42 20 U.S.C § 406(b) (“Motion”). ECF No. 36. Plaintiff’s counsel, Matthew F. Holmberg 21 (“Counsel”), moves for attorney’s fees in the amount of $36,413.50, with a credit to 22 Plaintiff Myiesha P. (“Plaintiff”) for Equal Access to Justice Act (“EAJA”) fees previously 23 paid to the Law Offices of Lawrence D. Rohlfing, Inc., CPC (“Counsel’s Firm”) in the 24 amount of $5,430.45. Id. at 1. Defendant Commissioner of Social Security (“Agency” or 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 “Commissioner”) filed a response (“Response”). ECF No. 37. Having considered the 2 parties’ filings, applicable law, and the record before it, and for the reasons discussed 3 below, the Court GRANTS the Motion. 4 I. BACKGROUND 5 On October 13, 2022, Plaintiff filed the Complaint seeking judicial review of the 6 Commissioner’s final decision denying disability insurance benefits. ECF No. 1. Prior to 7 the filling of the Complaint, Plaintiff and Counsel entered into a Social Security 8 Representation Agreement (“Fee Agreement”). ECF No. 36-1. Therein, the parties agreed 9 that Counsel’s fee for successful prosecution of this action would be “25% of the past-due 10 benefits awarded upon reversal of any unfavorable ALJ decision for work before the 11 court.” ECF 36-1 at ¶ 4. 12 On May 17, 2023, the parties jointly moved for resolution of the issues presented by 13 Plaintiff concerning the Agency’s final decision. ECF No. 17. On September 5, 2024, the 14 Court vacated the Commissioner’s final decision and remanded the matter for further 15 proceedings consistent with the Court’s opinion. ECF No. 30. On November 21, 2024, 16 based on a joint motion, the Court awarded Plaintiff $5,430.45 in attorney’s fees as 17 authorized by EAJA. ECF No. 35. On remand, the Commissioner issued a favorable 18 decision and found Plaintiff disabled since July 13, 2017. ECF No. 36-2 at 10. In the Notice 19 of Award, the Commissioner awarded Plaintiff $182,387 in past-due benefits and withheld 20 $45,596.75 of the past-due benefits for attorney’s fees. ECF Nos. 36 at 7, n.2, 36-3 at 2–3. 21 The Agency also awarded monthly benefits.3 22 23 3 The Notice of Award states that Plaintiff “will receive $45,596.75 each month.” ECF 24 No. 36-3 at 2. The Court suspects this figure represents a typographical error, in part 25 because it is the same amount withheld for attorney’s fees, i.e., “[w]e withheld $45,596.75 from your past due benefits in case we need to pay your representative.” Id. 26 at 3. Further, per the ALJ’s decision, the Court notes that monthly benefits were 27 suspended as of August 2024 and remained suspended for months in which Plaintiff performed Substantial Gainful Activity. At this time, it is not clear if Plaintiff continues 28 1 The past-due benefits amount, i.e., $182,387, represents the sum of monthly benefits 2 from May 2018 through November 2025. See ECF No. 36-3 at 1–2. However, as Counsel 3 notes, this amount is inconsistent with the Agency’s final decision, which concluded that 4 “benefits [were] suspended beginning August 2024” when Plaintiff began engaging in 5 Substantial Gainful Activity (“SGA”). ECF Nos. 36 at 7, n.2; see also ECF No. 36-2 at 5, 6 10. Accordingly, to be consistent with the ALJ’s findings, Counsel re-calculated the past- 7 due benefits amount based on monthly benefits from May 2018 through July 2024, which 8 amounts to $145,654.00. ECF No. 36-4. Based on this recalculation, 25% of the past-due 9 benefits amount equates to $36,413.50 in attorney’s fees. Id. 10 Counsel now moves for (i) attorney’s fees in the amount of $36,413.50 pursuant to 11 42 U.S.C. § 406(b) and (ii) an order directing Counsel’s Firm to reimburse Plaintiff 12 $5,430.45 for the EAJA fees previously awarded. ECF No. 36 at 1. Counsel’s Firm 13 expended a total of 24.46 hours, which includes 5.66 hours by two paralegals and 18.8 14 hours by Counsel, for an effective hourly rate of approximately $1,488.70.4 ECF Nos. 36 15 at 5, 36-5. The requested fee represents exactly 25% of Plaintiff’s past-due benefits (the 16 same percentage agreed upon in the Fee Agreement). In support of his request, Counsel 17 submits the Fee Agreement (ECF No. 36-1), the Agency’s Notice of Decision and Notice 18 of Award, dated November 25, 2025 and December 24, 2025, respectively (ECF Nos. 36- 19 2. 36-3), Counsel’s re-calculation of Plaintiff’s past-due benefits amount (ECF No. 36-4), 20 Counsel’s billing statements (ECF No. 36-5), Fiscal Year 2024 Disability Decision Data 21 (ECF No. 36-6), Counsel’s resume (ECF No. 36-7), and the U.S. Consumer Law Attorney 22 Fee Survey Report 2017-2018 (ECF No. 36-8). Counsel argues, in part, that an award of 23 $36,413.50 is reasonable compared to the Commissioner’s withholding of $45,596.75 and 24 fee awards in other cases, and given the results achieved. ECF No. 36 at 7. 25 26 27 4 The effective hourly rate was calculated by dividing $36,413.50 by 24.46 total hours. 28 1 On January 27, 2026, the Commissioner responded that it “neither supports not 2 opposes Counsel’s request for attorney’s fees under 42 U.S.C. § 406(b),” but requests that 3 the Court direct Counsel to reimburse any fees previously received under EAJA. ECF No. 4 37 at 3. The Commissioner notes that Counsel worked 24.46 hours representing Plaintiff 5 in this action. Id. at 2. As such, per the Commissioner, attorney’s fees in the amount of 6 $36,413.50 divided by 24.46 hours of work by Counsel would result in a reimbursement 7 rate of $1,488.70. Id. Plaintiff did not respond to the Motion and nothing in the record 8 indicates that Plaintiff opposes the fee request. See generally ECF. 9 II. LEGAL STANDARD 10 Pursuant to the Social Security Act, “[w]henever a court renders a judgment 11 favorable to a claimant . . . , who was represented before the court by an attorney, the court 12 may determine and allow as part of its judgment a reasonable fee for such representation, 13 not in excess of 25 percent of the total of the past-due benefits to which the claimant is 14 entitled by reason of such judgment.” 42 U.S.C. § 406(b)(1)(A). In contrast to an EAJA 15 award, which is paid by the government to the claimant, an award under Section 406(b) 16 “allows the claimant’s attorney to collect his or her fee out of the claimant’s past-due 17 disability benefits.” Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991). Moreover, 18 attorneys may receive fees under both EAJA and Section 406(b) but must refund to the 19 claimant the amount of the smaller fee. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002); 20 Parrish v. Comm’r Soc. Sec. Admin., 698 F.3d 1215, 1218 (9th Cir. 2012). 21 Fee determinations begin by “looking first to the contingent-fee agreement, then 22 testing it for reasonableness.” See Gisbrecht, 535 U.S. at 807–808 (concluding that Section 23 406(b) “does not displace contingent-fee agreements as the primary means by which fees 24 are set for successfully representing Social Security benefits claimants in court,” but rather 25 “calls for court review of such arrangements as an independent check, to assure that they 26 yield reasonable results in particular cases”); see also Crawford v. Astrue, 586 F.3d 1142, 27 1149 (9th Cir. 2009). As such, the 25% statutory maximum fee is not an automatic 28 entitlement, and “[w]ithin the 25 percent boundary . . . , the attorney for the successful 1 claimant must show that the fee sought is reasonable for the services rendered.” Gisbrecht, 2 535 U.S. at 807. In evaluating the reasonableness of an attorney’s fee request, courts should 3 consider “the character of the representation and the results the representative achieved.” 4 Id. at 808. As part of this evaluation, the court may “properly reduce the fee for substandard 5 performance, delay, or benefits that are not in proportion to the time spent on the case,” 6 i.e., the requested fees are excessively large in relation to the benefits achieved. Crawford, 7 586 F.3d at 1151 (noting there is no definitive list of factors to consider when determining 8 whether a fee is reasonable). Further, as evidence of reasonableness, the court may require 9 counsel to submit a record of hours spent and a statement of normal billing charges. Id. 10 III. DISCUSSION 11 Based on the reasonableness test articulated in Gisbrecht and Crawford, and review 12 of the information submitted in support of the Motion, the Court finds that Counsel’s 13 request for $36,413.50 in attorney’s fees is reasonable. 14 Beginning with the operative fee agreement, Plaintiff agreed to a fee of 25% of past- 15 due benefits following the reversal of any unfavorable ALJ decision. ECF No. 36-1. 16 Because the Court vacated the Commissioner’s unfavorable decision and the 17 Commissioner issued a favorable decision on remand, see ECF Nos. 30, 36-2, this fee 18 provision is both applicable and within the statutory limit. See 42 U.S.C. § 406(b)(1)(A). 19 Although 25% of the past-due benefits amount calculated in the Notice of Award is 20 $45,596.75, Counsel reduced his request and seeks $36,413.50 in attorney’s fees, which 21 represents 25% of past-due benefits based on his recalculation. See ECF No. 36 at 5. 22 Turning next to the character of the representation, there is no evidence in the record 23 of Counsel providing substandard performance. On the contrary, Counsel’s Firm expended 24 a total of 24.46 hours reviewing the ALJ decision, drafting the Complaint, communicating 25 and corresponding with Plaintiff, researching and drafting the motion for judicial review 26 and reply, and preparing the request for EAJA fees. See ECF No. 36-5. Within those 24.46 27 hours, Counsel engaged in successful motion practice that ultimately resulted in the 28 reversal of the Commissioner’s decision and an award of at least $145,654.00 in past-due 1 benefits for Plaintiff. See ECF No. 36-3 at 2. This is a substantial award with significant 2 benefits for Plaintiff. 3 Additionally, there is no evidence of delay or dilatory conduct by Counsel. Although 4 the parties stipulated to a 30-day extension, the extension was to accommodate the 5 Commissioner who needed additional time to prepare the administrative record. ECF No. 6 11. Thereafter, Counsel conferred with the Agency to try to resolve the case, and when 7 settlement was not possible, the parties timely filed the Joint Motion for Judicial Review. 8 See ECF Nos. 13, 15, 17. Thus, Counsel met all deadlines laid out in the scheduling order. 9 The Court further recognizes that a fee request for $36,413.50 based on 24.46 hours 10 of work reflects an effective hourly rate of $1,488.70. ECF No. 36 at 8. This figure, 11 however, is consistent with fees awarded in several cases in this District, with hourly rates 12 ranging from $1,438 to $1,990. See, e.g., Luzette B. v. King, No. 23cv483-MSB, 2025 U.S. 13 Dist. LEXIS 19011, at *7 (S.D. Cal. Feb. 3, 2025) (awarding fees representing 20.52% of 14 plaintiff’s past-due benefits for an effective hourly rate of $1,573.03 where counsel spent 15 7.4 hours and the paralegal spent 1.5 hours on plaintiff’s case); Habibullah A. v. Colvin, 16 No. 20cv1971-AGS, 2025 U.S. Dist. LEXIS 14261, at *3 (S.D. Cal. Jan. 27, 2025) 17 (awarding fees representing 23% of plaintiff’s past-due benefits for an effective hourly rate 18 of $1,707.31 where counsel spent 20.5 hours and the paralegal spent 2.6 hours on plaintiff’s 19 case); Watkins v. O’Malley, No. 21cv101-BLM, 2024 U.S. Dist. LEXIS 93524, at *6–8 20 (S.D. Cal. May 24, 2024) (awarding fees representing 25% of plaintiff’s past-due benefits 21 for an effective hourly rate of $1,566 for a combined 20 hours spent by the attorney and 22 paralegal on plaintiff’s case); Roland S. v. Kijakazi, No. 20cv01068-AHG, 2023 U.S. Dist. 23 LEXIS 189176, at *9 (S.D. Cal. Oct. 20, 2023) (awarding fees representing 15.54% of 24 plaintiff’s past-due benefits for an effective hourly rate of $1,438.35 where counsel spent 25 5.36 hours and the paralegal spent 3.4 hours on plaintiff’s case); Reddick v. Berryhill, No. 26 16-CV-29-BTM-BLM, 2019 U.S. Dist. LEXIS 91736, at *5–6 (S.D. Cal. May 30, 2019) 27 (on reconsideration, awarding fees representing 19.45% of plaintiff’s past-due benefits for 28 1 effective hourly rate of $1,990.74 where counsel spent 18.2 hours and the paralegal 2 spent 3.4 hours on plaintiff's case). 3 Moreover, the Court notes that Counsel agreed to the representation on a 4 || contingency fee basis. As such, Counsel assumed a substantial risk of not recovering any 5 ||attorney’s fees. See Aversman v. Berryhill, No. 17-cv-1121-WQH-JMA, 2021 U.S. Dist. 6 || LEXIS 1253, at *6—7 (S.D. Cal. Jan. 5, 2021) (recognizing “there runs a substantial risk of 7 || loss” with contingency contracts). Having achieved an excellent outcome for Plaintiff, the 8 ||Court will not penalize Counsel for his efficiency in this action. /d. at *6—7 (“Courts are 9 ||loathe to penalize experienced counsel for efficient representation under contingency 10 ||agreements, particularly in the social security context.”’). 11 In sum, the Court sees no basis to reduce the fee award requested. As to the EAJA 12 || fees, Counsel may not keep attorney’s fees awarded under both EAJA and Section 406(b). 13 || Accordingly, Counsel’s Firm shall refund the smaller fee to Plaintiff. Gisbrecht, 535 U.S. 14 || at 796. 15 CONCLUSION 16 For the reasons set forth above, the Court GRANTS the Motion (ECF No. 36) and 17 || awards the Law Offices of Lawrence D. Rohlfing, Inc., CPC attorney’s fees in the amount 18 $36.413.50. The Court further ORDERS the Law Offices of Lawrence D. Rohlfing, 19 CPC to reimburse Plaintiff the amount of $5,430.45 for the EAJA fees previously 20 || awarded by this Court. 21 IT IS SO ORDERED. er= SK 22 Dated: March 25, 2026 3 Honorable Valerie E. Torres United States Magistrate Judge 24 25 26 27 28