Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RICARDO L., Case No.: 23-cv-02030-GC 12 Plaintiff, ORDER GRANTING IN PART 13 v. MOTION FOR ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(b) 14 FRANK BISIGNANO, Commissioner of Social Security, 15 [ECF No. 16] Defendant. 16 17 18 Before the Court is a Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) filed 19 by Matthew Holmberg, counsel for Plaintiff Ricardo L. (“Plaintiff”). (ECF No. 16.) 20 Plaintiff was served with a copy of the motion. (Id.) The Commissioner of Social Security 21 (“Commissioner”) filed a Response to the motion and “neither support[ed] nor oppose[ed] 22 counsel’s request for attorney’s fees under 42 U.S.C. § 406(b).” (ECF No. 20.) For the 23 reasons set forth below, the motion is GRANTED IN PART. 24 I. BACKGROUND 25 On November 2, 2023, Plaintiff filed a Complaint pursuant to 42 U.S.C. § 405(g) 26 seeking judicial review of a decision by the Commissioner of Social Security 27 (“Commissioner”) denying his application for a period of disability and disability insurance 28 benefits. (ECF No. 1.) On January 3, 2024, the Commissioner filed the Administrative 1 Record. (ECF No. 9.) Approximately one month later, and with no further filings or 2 briefing in this case, the parties filed a Joint Motion Stipulating to Voluntary Remand on 3 February 15, 2024. (ECF No. 11.) The Honorable Karen S. Crawford granted the parties’ 4 Joint Stipulation, vacated the Commissioner’s final decision, and remanded for further 5 proceedings. (ECF Nos. 12, 13.) 6 On March 29, 2024, the parties filed a Joint Motion requesting that the Court award 7 Plaintiff attorney’s fees and expenses pursuant to the Equal Access to Justice Act 8 (“EAJA”), 28 U.S.C. § 2412(d), and costs pursuant to 28 U.S.C. § 1920. (ECF No. 14.) 9 The Court granted the Joint Motion and awarded Plaintiff attorney’s fees and expenses in 10 the amount of $1,800. (ECF No. 15.) 11 On remand, the Social Security Administration (“SSA”) issued a fully favorable 12 decision to Plaintiff on April 21, 2025, finding that Plaintiff became disabled on 13 October 22, 2020. (ECF No. 16-2 at 9.) On October 22, 2025, the SSA notified Plaintiff 14 that he was entitled to $96,654 in past-due benefits. (ECF Nos. 16 at 5, 16-3.) The SSA 15 withheld $24,163.50 from Plaintiff’s past-due benefits in case they needed it to pay 16 Plaintiff’s representative. (ECF No. 16-3.) 17 In the instant motion, Plaintiff’s counsel requests that the Court order $16,800 as 18 payment of attorney’s fees, payable to Law Offices of Lawrence D. Rohlfing, Inc., CPC, 19 and order reimbursement to Plaintiff in the amount of $1,800, which is the amount of EAJA 20 fees previously awarded to Plaintiff and assigned to counsel. 21 II. LEGAL STANDARD 22 42 U.S.C. § 406(b) provides in relevant part as follows: 23 Whenever a court renders a judgment favorable to a claimant under this 24 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 25 representation, not in excess of 25 percent of the total of the past-due benefits 26 to which the claimant is entitled by reason of such judgment . . . . 27 42 U.S.C. § 406(b)(1)(A). 28 /// 1 The statute does not instruct the district court as to how counsel’s fees should be 2 calculated. See Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (en banc). With 3 respect to Section 406(b), the U.S. Supreme Court has held that, 4 [m]ost plausibly read, . . . § 406(b) does not displace contingent-fee 5 agreements as the primary means by which fees are set for successfully representing Social Security benefits claimants in court. Rather, § 406(b) calls 6 for court review of such arrangements as an independent check, to assure that 7 they yield reasonable results in particular cases. Congress has provided one boundary line: Agreements are unenforceable to the extent that they provide 8 for fees exceeding 25 percent of the past due benefits. Within the 25 percent 9 boundary, . . . the attorney for the successful claimant must show that the fee sought is reasonable for the services rendered. 10 11 Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002) (footnotes and citations omitted). Thus, 12 in cases in which a contingency fee agreement exists, a district court should first look to 13 the contingency fee agreement and then test it for reasonableness. Id. at 808. 14 The Supreme Court has instructed that a reduction of the fee award may be 15 appropriate “based on the character of the representation and the results the representative 16 achieved.” Id. The Ninth Circuit subsequently explained that when analyzing the 17 reasonableness of a fee award, a court “may properly reduce the fee for substandard 18 performance, delay, or benefits that are not in proportion to the time spent on the case.” 19 Crawford, 586 F.3d at 1151 (citing Gisbrecht, 535 U.S. at 808). To this end, the Supreme 20 Court has explicitly provided: 21 [T]he court may require the claimant’s attorney to submit, not as a basis for 22 satellite litigation, but as an aid to the court’s assessment of the reasonableness of the fee yielded by the fee agreement, a record of the hours spent 23 representing the claimant and a statement of the lawyer’s normal hourly 24 billing charge for noncontingent-fee cases. 25 Gisbrecht, 535 U.S. at 808; see also Crawford, 586 F.3d at 1151. Thus, in awarding fees, 26 a district court may “consider the lodestar calculation, but only as an aid in assessing the 27 reasonableness of the fee.” Crawford, 586 F.3d at 1151 (emphasis in original). 28 /// 1 “[T]he Commissioner of Social Security . . . has no direct financial stake in the answer to 2 the § 406(b) question; instead, [he] plays a part in the fee determination resembling that of 3 a trustee for the claimants.” Gisbrecht, 535 U.S. at 798 n.6. “Because the SSA has no 4 direct interest in how much of the award goes to counsel and how much to the disabled 5 person, the district court has an affirmative duty to assure that the reasonableness of the fee 6 is established.” Crawford, 586 F.3d at 1149. “The attorney bears the burden of 7 establishing that the fee sought is reasonable.” Id. at 1148 (citation omitted). 8 The EAJA also permits an attorney to receive fees for successful Social Security 9 representations. See Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1216–17 (9th 10 Cir. 2012). Fees awarded pursuant to the EAJA are paid by the government rather than the 11 claimant. Id. at 1218. Accordingly, while “[f]ee awards may be made under both 12 prescriptions, . . . the claimant’s attorney must ‘refun[d] to the claimant the amount of the 13 smaller fee.’” Gisbrecht, 535 U.S. at 796 (second alteration in original) (quoting Act of 14 Aug. 5, 1985, Pub. L. No. 99-80, § 3, 99 Stat. 186); see also Parrish, 698 F.3d at 1218 15 (“[I]n order to maximize the award of past-due benefits to claimants and to avoid giving 16 double compensation to attorneys, the savings provision requires a lawyer to offset any 17 fees received under § 406(b) with any award that the attorney receives under [28 U.S.C.] 18 § 2412 if the two were for the ‘same work.’”). 19 III. DISCUSSION 20 A. Plaintiff’s Contingency Fee Agreement Satisfies Statutory Requirements. 21 Pursuant to Gisbrecht, the Court must first look to see if a proper contingency fee 22 agreement exists in this case. 535 U.S. at 808. Plaintiff’s representation agreement 23 provides that “the fee for successful prosecution of this matter is a separate 25% of the 24 past-due benefits awarded upon reversal of any unfavorable ALJ decision for work before 25 the court.” (ECF No. 16-1 at 1 (emphasis removed).) Counsel now seeks $16,800 in 26 attorney’s fees for work before the Court, which constitutes 17.38% of Plaintiff’s past-due 27 benefits. (See ECF Nos. 16 at 5, 16-3.) The contingency fee agreement satisfies statutory 28 requirements, and the requested fee falls below the 25% statutory ceiling. See 42 U.S.C. § 1 406(b); Gisbrecht, 535 U.S. at 807. Therefore, the Court must analyze the character of 2 counsel’s representation and the results achieved to determine whether counsel’s requested 3 fee is reasonable. See Gisbrecht, 535 U.S. at 808; Crawford, 586 F.3d at 1148. 4 B. Counsel’s Requested Hourly Rate is Unreasonable. 5 Gisbrecht instructs that, where “the benefits are large in comparison to the amount 6 of time counsel spent on the case,” the resulting contingency fee can be unreasonable such 7 that “a downward adjustment is . . . in order.” 535 U.S. at 808. On remand, the SSA issued 8 a fully favorable decision to Plaintiff, and awarded past-due benefits of $96,654. (ECF 9 Nos. 16-2 at 9, 16-3.) Counsel requests $16,800 of those past-due benefits in attorney’s 10 fees as compensation for his successful representation. (ECF Nos. 16 at 5, 16-3.) However, 11 counsel spent only 5.68 hours, and his paralegals only 2.82 hours, representing Plaintiff 12 before the Court from September 2023 to March 2024. (ECF No. 16-4.) This yields a de 13 facto attorney hourly rate of $2,957.75 and combined hourly rate of $1,976.47. (Id.) 14 Counsel “must show that the fee sought is reasonable for the services rendered.” 15 Gisbrecht, 535 U.S. at 807; see also Crawford, 586 F.3d at 1149. There is no evidence 16 that the underlying issues here were so complex or novel as to justify a de facto attorney 17 hourly rate of approximately $3,000. The issues raised in the complaint―namely, that the 18 Administrative Law Judge (“ALJ”) erred in assessing Plaintiff’s symptom testimony, 19 residual functional capacity, and a medical opinion―are common across the vast majority 20 of social security disability cases. See, e.g., Kitchen v. Kijakazi, 82 F.4th 732, 739 (9th Cir. 21 2023); Smartt v. Kijakazi, 53 F.4th 489, 494 (9th Cir. 2022). Plaintiff’s severe mental 22 impairments of major depressive disorder and anxiety disorder in the ALJ’s decision are 23 also fairly common in social security disability cases. See § 28:12. Mental disorders and 24 GAF, 3 Soc. Sec. Disab. Claims Prac. & Proc. § 28:12 (2nd ed.). With such straightforward 25 /// 26 /// 27 /// 28 /// 1 issues, the parties were able to jointly move for voluntary remand before completing any 2 merits briefing. (ECF No. 11.)1 3 The Court recognizes the contingent nature of counsel’s representation and the fact 4 that counsel will receive no percentage of Plaintiff’s future benefits. However, counsel 5 failed to cite any authorities in this District (or elsewhere) that suggest the requested de 6 facto rates are reasonable.2 (See ECF No. 16 at 9.) Such high rates appear to be an outlier 7 in this District. See, e.g., Clinton S. v. King, No. 21-cv-1359-MMP, 2025 WL 297033, at 8 *3–4 (S.D. Cal. Jan. 24, 2025) (finding a $1,787.31 de facto combined hourly rate 9 disproportionate to 11.19 hours billed and reducing the rate to $1,340.48); Michelle H. v. 10 Berryhill, No. 18-cv-2328 JLS (RNB), 2022 WL 1138146, at *3 (S.D. Cal. Apr. 18, 2022) 11 (finding a $1,134 de facto combined hourly rate disproportionate to 27.5 hours billed and 12 reducing the rate to $907.76). 13 Here, counsel spent only 0.8 hours reviewing the ALJ’s decision and appellate denial 14 letter, 1 hour preparing Plaintiff’s complaint, and 2.3 hours reviewing the record and 15 drafting a settlement letter. (ECF No. 16-4.) Otherwise, counsel spent approximately 16 1 hour over three days preparing a joint motion to voluntarily remand this case, and 17 18 19 1 Notably, on remand to the SSA, a different ALJ found Plaintiff disabled at Step Three, finding that Plaintiff’s mental impairments met or medically equaled several 20 Listings. (ECF No. 16-2.) This suggests clear error in the ALJ decision before the Court. 21 2 The highest de facto attorney hourly rate awarded that counsel cited is $2,433 from the Eastern District of New York. (ECF No. 16 at 10 n.5 (citing Kazanjian v. Astrue, No. 22 09 civ. 3678 BMC, 2011 WL 2847439 (E.D.N.Y. July 15, 2011)). This de facto attorney 23 hourly rate is notably less than the requested rate here of $2,957.75. Moreover, unlike the present case, counsel in Kazanjian filed a “non-boilerplate” complaint, merits brief, reply 24 brief, reviewed the record and the Commissioner’s opposition brief, and performed all the 25 attendant tasks and communications to those efforts within 19.75 hours. Kazanjian, 2011 WL 2847439, at *2. The court awarded counsel in Kazanjian for his efficiency considering 26 his expansive work and the complex administrative record. Id. Here, there is no indication 27 that the record was complex. (See ECF No. 9.) Counsel simply filed the complaint before jointly moving to voluntarily remand the case. (ECF Nos. 1–11.) Counsel’s 5.68 hours 28 1 approximately 0.5 hours preparing the EAJA fee request. (Id.) Charging Plaintiff a de 2 facto attorney hourly rate of approximately $3,000 is unreasonable given counsel’s limited 3 representation before the Court. See Gisbrecht, 535 U.S. at 808 (counsel’s billing records 4 may aid the Court in assessing the reasonableness of the fee yielded by the fee agreement); 5 see, e.g., Douglas K. T. v. Kijakazi, No. ED CV 18-1702-E, 2022 WL 18231787, at *3-4 6 (C.D. Cal. Nov. 28, 2022) (adjusting counsel’s requested fee downward from a de facto 7 attorney hourly rate of $2,839.50 to $1,500 considering, in part, that counsel “spent only 8 11.75 hours representing Plaintiff before the Court”). 9 This case’s simplicity, minimal filings and motion practice, lack of merits briefing, 10 few hours billed, and smaller award of past-due benefits make it distinguishable from cases 11 in this District where the Court found a high de facto rate to be reasonable. See, e.g., Vivian 12 M. v. Bisignano, No. 20-cv-1827-SBC, 2026 WL 350768, at *2–3 (S.D. Cal. Feb. 9, 2026) 13 (approving $2,024.26 de facto attorney hourly rate considering the non-combined nature 14 of the rate, 20.8 hours billed, and counsel’s extensive representation resulting in $168,419 15 in past-due benefits); Theresa Y. v. O'Malley, No. 21-cv-0814-AGS, 2025 WL 1265863, at 16 *1–2 (S.D. Cal. May 1, 2025) (approving $2,050.28 de facto combined hourly rate 17 considering 22.2 attorney and paralegal hours billed and counsel’s extensive representation 18 resulting in $182,065 in past-due benefits); Reddick v. Berryhill, No. 16-cv-29-BTM-BLM, 19 2019 WL 2330895, at *2 (S.D. Cal. May 30, 2019) (approving $1,990 de facto combined 20 hourly rate considering 21.6 attorney and paralegal hours billed, full merits briefing, 21 counsel’s evaluation of new and material evidence, and $221,000 awarded in past-due 22 benefits). 23 Counsel cites a survey of consumer law attorney hourly rates between $534 and $787 24 for work performed in the Los Angeles area between 2017 and 2018. (ECF No. 16-7 at 25 28.) Counsel also cites complex federal litigation attorney hourly rates between $467 and 26 $807 according to the 2023 USAO Fitzpatrick Fee Matrix, and $473 and $1,141 according 27 to the 2025 Laffey Matrix for work performed in the Washington, D.C. area. (Id. at 43-43, 28 46.) Counsel’s suggestions regarding out-of-district hourly rates in areas of law that he did 1 not practice in this case do not persuade the Court that his requested fee is reasonable. 2 Even utilizing counsel’s benchmarks, the de facto attorney hourly rate here of $2,957.75 is 3 2.59 times the highest hourly rate cited of $1,141. If the Court factored in paralegal time, 4 the de facto combined hourly rate here of $1,976.47 is still 1.73 times the highest rate 5 cited. See Biggerstaff v. Saul, 840 Fed. App’x 69, 71 (9th Cir. 2020) (affirming reduction 6 in requested fees based in part on the “significant disparity” between the requested de facto 7 hourly rate and the highest reported median rate for consumer law attorneys). 8 Counsel assumed some risk of non-payment by taking on this contingency fee case. 9 However, that risk in this case was not so high as to justify a significant departure from the 10 fees that this Court has consistently found to be reasonable. See Maud A. v. O'Malley, No. 11 22-cv-1505-LR, 2024 WL 4439259, at *3 (S.D. Cal. Oct. 7, 2024) (citing Watkins v. 12 O'Malley, No. 21-cv-101-BLM, 2024 WL 2702444, at *1–2 (S.D. Cal. May 24, 2024); 13 Satariano v. Saul, No. 21-cv-548-BLM, 2023 WL 7390841, at *1–2 (S.D. Cal. Nov. 7, 14 2023); Roland S. v. Kijakazi, No. 20-cv-01068-AHG, 2023 WL 6966153, at *1, *3 (S.D. 15 Cal. Oct. 20, 2023). Indeed, the proffered rate is higher than what counsel has previously 16 accepted in this District. See Richard N. v. Bisgnano, No. 23-cv-01456-GC, 2026 WL 17 1697080, at *3 (S.D. Cal. June 11, 2026) (de facto combined and attorney hourly rates of 18 $730.27 and $905.11); Felice F. v. O'Malley, No. 22-cv-1394-DEB, 2024 WL 4924247, at 19 *2 (S.D. Cal. Nov. 27, 2024) (de facto combined and attorney hourly rates of $631.73 and 20 $764.71). Although Plaintiff received a fully favorable decision from the SSA on remand, 21 it does not appear that this case was exceptional such that an outsized fee award is 22 warranted. The Court therefore finds that the requested fee would result in a “windfall” to 23 counsel and that a reduction in fees is warranted under a reasonableness analysis. 24 Crawford, 586 F.3d at 1151 (citing Gisbrecht, 535 U.S. at 808). 25 C. A Downward Adjustment of Counsel’s Hourly Rate Is Appropriate. 26 Consequently, the Court must consider the manner by which to reduce the requested 27 amount to award a reasonable fee. Gisbrecht leaves the manner of reduction to the district 28 court’s broad discretion. 535 U.S. at 808. “Judges of our district courts are accustomed to 1 making reasonableness determinations in a wide variety of contexts, and their assessments 2 in such matters, in the event of an appeal, ordinarily qualify for highly respectful review.” 3 Id. A court must simply provide a “concise but clear explanation of its reasons for the fee 4 award.” Crawford, 586 F.3d at 1152 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 5 (1983)). 6 Here, the Court finds that reducing the de facto combined hourly rate in this case 7 from $1,976.47 to $1,600 would be reasonable. See Maud A., 2024 WL 4439259, at *3 8 (collecting cases approving de facto combined and attorney hourly rates between $1,300 9 and $1,600 where the parties agreed to a voluntary remand and plaintiffs received a 10 substantial award of past-due benefits). In his Motion, counsel requested a fee of $16,800, 11 which constitutes 17.38% of Plaintiff’s past-due benefits and de facto combined and 12 attorney hourly rates of $1,976.47 and $2,957.75. This adjustment results in a fee award 13 of $13,600, which constitutes 14.07% of Plaintiff’s past-due benefits and a de facto 14 combined hourly rate of $1,600. Given the foregoing, the Court finds that a fee award of 15 $13,600 is reasonable. 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 CONCLUSION 2 For the reasons set forth above, the Court GRANTS IN PART Plaintiff's counsel’s 3 ||Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b). The Court hereby awards to 4 ||Law Offices of Lawrence D. Rohlfing, Inc., CPC attorney fees pursuant to 42 U.S.C. § 5 ||406(b) in the amount of $13,600. The Court further orders Law Offices of Lawrence D. 6 || Rohlfing, Inc., CPC to rermburse Plaintiff the amount of $1,800 for EAJA fees. 7 IT IS SO ORDERED. 8 || Dated: July 1, 2026 9 10 11 12 HorhGuillermo Cabrera United States Magistrate Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28