Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARLITA O., Case No.: 23-CV-00572-GC 12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(b) 14 FRANK BISIGNANO, Commissioner of Social Security 15 [ECF No. 26] Defendant. 16 17 18 Before the Court is a Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) filed 19 by Steven G. Rosales, counsel for Plaintiff Marlita O. (“Plaintiff”). (ECF No. 26.) Plaintiff 20 was served with a copy of the motion. (Id.) The Commissioner of Social Security 21 (“Commissioner”) filed a Response to the motion. (ECF No. 29.) The Commissioner 22 “neither support[ed] nor oppose[ed] counsel’s request for attorney’s fees under 42 U.S.C. 23 § 406(b).” (Id.) For the reasons set forth below, the Court GRANTS the motion. 24 I. BACKGROUND 25 On March 31, 2023, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 405(g) 26 seeking judicial review of a decision by the Commissioner denying her application for a 27 period of disability and disability insurance benefits. (ECF No. 1.) May 30, 2023, the 28 Commissioner filed the Administrative Record. (ECF No. 7.) Plaintiff filed her merits 1 brief on August 17, 2023. (ECF No. 12.) The Commissioner thereafter filed a responsive 2 brief on September 18, 2023. (ECF No. 14.) On December 12, 2023, the Honorable Karen 3 S. Crawford vacated the Commissioner’s final decision, and remanded for further 4 proceedings. (ECF Nos. 15, 16.) 5 On March 11, 2024, the parties filed a joint motion requesting that the Court award 6 Plaintiff attorney’s fees and expenses pursuant to the Equal Access to Justice Act 7 (“EAJA”), 28 U.S.C. § 2412(d), and costs pursuant to 28 U.S.C. § 1920. (ECF No. 17.) 8 The Court granted the joint motion and awarded Plaintiff attorney’s fees and expenses in 9 the amount of $5,858.00 and costs in the amount of $402.00. (ECF No. 20.) 10 On remand, the Commissioner issued a fully favorable decision to Plaintiff on April 11 22, 2025, finding that Plaintiff became disabled on February 25, 2020. (ECF No. 26-2.) 12 On December 23, 2025, the Social Security Administration (“SSA”) notified Plaintiff that 13 she was entitled to past due benefits in the amount of $135,018.00. (ECF No. 26-3 at 1.) 14 The SSA withheld $33,754.50 from Plaintiff’s past due benefits in case they needed it to 15 pay Plaintiff’s representative. (Id.) 16 On August 4, 2025, Plaintiff’s counsel filed his first Motion for Attorney Fees 17 Pursuant to 42 U.S.C. § 406(b). (ECF No. 21.) On December 16, 2025, Judge Crawford 18 denied the Motion without prejudice, reasoning that Plaintiff’s counsel was required to 19 secure the SSA’s authorization for his fee agreement with Plaintiff but failed to do so and 20 “the Court was unable to determine the amount of past-due disability benefits awarded.” 21 (ECF No. 25.) In the instant motion, Plaintiff’s counsel requests that the Court order the 22 payment of attorney’s fees in the amount of $33,754.50, payable to Law Offices of 23 Lawrence D. Rohlfing, Inc., CPC, and order reimbursement to Plaintiff in the amount of 24 $5,858.00, which is the amount of EAJA fees previously awarded to Plaintiff and assigned 25 to counsel. Plaintiff’s counsel does not seek reimbursement under 42 U.S.C. § 406(a). 26 (See ECF No. 26 at 8.) Therefore, Plaintiff’s counsel was not required to obtain 27 authorization from the SSA of a fee sought for services performed before the SSA under 28 42 U.S.C. § 406(a). See 20 C.F.R. §§ 404.1725(a), 404.1728(b), 404.1730(a). 1 II. LEGAL STANDARD 2 42 U.S.C. § 406(b) provides in relevant part as follows: 3 Whenever a court renders a judgment favorable to a claimant under this 4 subchapter who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such 5 representation, not in excess of 25 percent of the total of the past-due benefits 6 to which the claimant is entitled by reason of such judgment . . . . 7 42 U.S.C. § 406(b)(1)(A). 8 The statute does not instruct the district court as to how counsel’s fees should be 9 calculated. See Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (en banc). With 10 respect to Section 406(b), the U.S. Supreme Court has held that, 11 [m]ost plausibly read, . . . § 406(b) does not displace contingent-fee 12 agreements as the primary means by which fees are set for successfully 13 representing Social Security benefits claimants in court. Rather, § 406(b) calls for court review of such arrangements as an independent check, to assure that 14 they yield reasonable results in particular cases. Congress has provided one 15 boundary line: Agreements are unenforceable to the extent that they provide for fees exceeding 25 percent of the past due benefits. Within the 25 percent 16 boundary, . . . the attorney for the successful claimant must show that the fee 17 sought is reasonable for the services rendered. 18 Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002) (footnotes and citations omitted). Thus, 19 in cases in which a contingency fee agreement exists, a district court should first look to 20 the contingency fee agreement and then test it for reasonableness. Id. at 808. 21 The Supreme Court has instructed that a reduction of the fee award may be 22 appropriate “based on the character of the representation and the results the representative 23 achieved.” Id. The Ninth Circuit subsequently explained that when analyzing the 24 reasonableness of a fee award, a court “may properly reduce the fee for substandard 25 performance, delay, or benefits that are not in proportion to the time spent on the case.” 26 Crawford, 586 F.3d at 1151 (citing Gisbrecht, 535 U.S. at 808). To this end, the Supreme 27 Court has explicitly provided: 28 /// 1 [T]he court may require the claimant’s attorney to submit, not as a basis for satellite litigation, but as an aid to the court’s assessment of the reasonableness 2 of the fee yielded by the fee agreement, a record of the hours spent 3 representing the claimant and a statement of the lawyer’s normal hourly billing charge for noncontingent-fee cases. 4 5 Gisbrecht, 535 U.S. at 808; see also Crawford, 586 F.3d at 1151. Thus, in awarding fees, 6 a district court may “consider the lodestar calculation, but only as an aid in assessing the 7 reasonableness of the fee.” Crawford, 586 F.3d at 1151 (emphasis in original). 8 “[T]he Commissioner of Social Security . . . has no direct financial stake in the 9 answer to the § 406(b) question; instead, she plays a part in the fee determination 10 resembling that of a trustee for the claimants.” Gisbrecht, 535 U.S. at 798 n.6. “Because 11 the SSA has no direct interest in how much of the award goes to counsel and how much to 12 the disabled person, the district court has an affirmative duty to assure that the 13 reasonableness of the fee is established.” Crawford, 586 F.3d at 1149. “The attorney bears 14 the burden of establishing that the fee sought is reasonable.” Id. at 1148 (citation omitted). 15 The EAJA also permits an attorney to receive fees for successful Social Security 16 representations. See Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1216–17 (9th 17 Cir. 2012). Fees awarded pursuant to the EAJA are paid by the government rather than the 18 claimant. Id. at 1218. Accordingly, while “[f]ee awards may be made under both 19 prescriptions, . . . the claimant’s attorney must ‘refun[d] to the claimant the amount of the 20 smaller fee.’” Gisbrecht, 535 U.S. at 796 (second alteration in original) (quoting Act of 21 Aug. 5, 1985, Pub. L. No. 99-80, § 3, 99 Stat. 186); see also Parrish, 698 F.3d at 1218 22 (“[I]n order to maximize the award of past-due benefits to claimants and to avoid giving 23 double compensation to attorneys, the savings provision requires a lawyer to offset any 24 fees received under § 406(b) with any award that the attorney receives under [28 U.S.C.] 25 § 2412 if the two were for the ‘same work.’”). 26 III. DISCUSSION 27 Pursuant to Gisbrecht, the Court must first look to see if a contingency fee agreement 28 exists in this case. Gisbrecht, 535 U.S. at 808. Plaintiff’s representation agreement with 1 counsel provides that “the fee for successful prosecution of this matter is a separate 25% 2 of the past due benefits awarded upon reversal of any unfavorable ALJ decision for work 3 before the court.” (ECF No. 26-1 at 1 (emphasis removed).) Counsel now seeks 4 $33,754.50, which is 25% of the past-due benefits awarded to Plaintiff. (See ECF No. 26- 5 3 at 1.) 6 In support of the motion, Plaintiff’s counsel attaches a portion of the ALJ’s decision 7 on remand, the SSA’s Notice of Award of past due benefits, his contingency fee agreement 8 with Plaintiff, and an itemized list of the hours his firm spent representing Plaintiff in this 9 matter. (ECF Nos. 26-1, 26-2, 26-3, 26-4.) Counsel also attaches a Social Security Report 10 to Congress regarding the Limitation on Administrative Expenses, pages from the United 11 States Consumer Law Attorney Fee Survey Report 2017–2018, the USAO Fitzpatrick 12 Matrix, and the 2025 Laffey Matrix. (ECF Nos. 26-5, 26-7.) 13 Upon review, the Court finds that the amount sought by Plaintiff’s counsel is 14 reasonable. First, the results obtained by Plaintiff’s counsel were excellent, as the case was 15 remanded to the SSA for further proceedings after the filing of Plaintiff’s merits brief, 16 which ultimately resulted in the award of $135,018.00 in past due benefits to Plaintiff. 17 Second, the Court finds that there was no undue delay or substandard performance that 18 would warrant a downward adjustment. 19 Third, the amount sought is consistent with the 25% cap set by Congress and is not 20 disproportionate to the time spent by Plaintiff’s counsel in this action. Plaintiff’s counsel 21 spent 23 hours representing Plaintiff between March 2023 and March 2024. (ECF No. 26- 22 4.) Between March 2023 and December 2023, paralegals with counsel’s firm spent an 23 additional 2.3 hours on this case. (Id.) The effective hourly rate of $1,467.59 (or combined 24 hourly rate of $1,334.17), considering counsel’s experience and results is not out of line 25 with hourly rates approved by courts in this District. See, e.g., Desiree D. v. Saul, No. 26 3:19-CV-01522-RBM, 2021 WL 1564331, at *3 (S.D. Cal. Apr. 20, 2021) (approving a 27 $16,363 fee award with a de facto hourly attorney rate of $1,494.34 for 10.95 hours of 28 work); Martinez v. Saul, No. 15-CV-1994-BTM-BGS, 2019 WL 3322481, at *2 (S.D. Cal. 1 || July 24, 2019) (approving a $30,000 fee award with an effective blended attorney/paralegal 2 hourly rate of $1,488.83 for 20.15 hours of work). 3 Accordingly, the Court finds an award of attorney’s fees in the amount of $33,754.50 4 ||to be reasonable. In making this determination, the Court recognizes the contingent-fee 5 ||nature of this case and counsel’s assumption of risk in agreeing to represent Plaintiff under 6 terms. 7 CONCLUSION 8 For the reasons set forth above, the Court GRANTS Plaintiff's counsel’s Motion for 9 || Attorney Fees Pursuant to 42 U.S.C. § 406(b). Accordingly, the Court hereby awards to 10 || Law Offices of Lawrence D. Rohlfing, Inc., CPC attorney fees pursuant to 42 U.S.C. § 11 |}406(b) in the amount of $33,754.50. The Court further orders Law Offices of Lawrence 12 || D. Rohlfing, Inc., CPC to rermburse Plaintiff the amount of $5,858.00 for EAJA fees. 13 IT IS SO ORDERED. 14 || Dated: June 9, 2026 15 16 17 18 HoiNGuillermo Cabrera United States Magistrate Judge 19 20 21 22 23 24 25 26 27 28