The opinion of the court was delivered by: Sheri Pym United States Magistrate Judge
MEMORANDUM AND ORDER GRANTING PLAINTIFF'S MOTION FOR ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(b)
Plaintiff's counsel, Lawrence D. Rohlfing of the Law Offices of Lawrence D. Rohlfing, has filed a Motion for Attorney Fees Pursuant to 42 U.S.C. § 406(b) ("406(b) Motion"). Plaintiff's counsel seeks an award of fees of $16,000 from a recovery of $84,812 in retroactive benefits for plaintiff. For the reasons set forth below, the court grants the 406(b) Motion for fees in this amount.
Plaintiff In-grid Quinonez Rodenas filed a complaint in this court on October 5, 2011, seeking a review of a denial of disability insurance benefits. On August 29, 2012, following the parties' full briefing of the issues in dispute, the court reversed the decision of the Commissioner of Social Security and remanded the matter to the Commissioner for further administrative proceedings pursuant to sentence four of 42 U.S.C. § 405(g). On October 29, 2012, based on the parties' stipulation for the award of fees under the Equal Access to Justice Act ("EAJA"), the court awarded plaintiff's counsel fees and expenses in the amount of $4,500, and costs in the amount of $410.
Upon remand to the Commissioner, on December 26, 2012, the Administrative Law Judge ("ALJ") found plaintiff has been under a disability since March 16, 2009. See 406(b) Mtn., Ex. 2. On March 25, 2013, the Social Security Administration ("SSA") notified plaintiff that she was due monthly benefits beginning in September 2009 in amounts ranging from $2,095.20 to $2,207.50. 406(b) Mtn., Ex. 3. This amounts to past due benefits totaling $84,812.00. See 406(b) Mtn., Rohlfing Decl. ¶ 4, Ex. 3. Of this, SSA withheld "25 percent of past due benefits," that is, "$21,203.00 from [plaintiff's] past due benefits in case [SSA] need[s] to pay [plaintiff's] lawyer." 406(b) Mtn., Ex. 3 at 2.
On March 29, 2013, plaintiff's counsel Lawrence Rohlfing filed a Motion for Attorney Fees pursuant to 42 U.S.C. § 406(b). Counsel Rohlfing seeks an award of § 406(b) fees in the amount of $16,000.00, subject to an offset for the $4,500.00 in EAJA fees previously paid. Counsel states he will also seek fees of $8,000 under 42 U.S.C. § 406(a), but that the total of all fees sought will not exceed the $21,203 withholding in this case. See 406(b) Mtn., Rohlfing Decl., ¶ 6.
The 406(b) Motion is supported by a Declaration of Lawrence Rohlfing and various exhibits. Included among these is an agreement between plaintiff and the Law Offices of Lawrence D. Rohlfing dated February 24, 2010, in which plaintiff agreed to pay a fee for a successful prosecution of "25% of the backpay awarded upon reversal of any unfavorable ALJ decision for work before the court . . . subject to approval by the court with jurisdiction." 406(b) Mtn., Ex. 1, ¶ 4.
Also included is a summary of the time spent by attorney Rohlfing, law clerk Vijay Patel, and two paralegals on work before this court through remand to the Commissioner. 406(b) Mtn., Rohlfing Decl., ¶ 5, Ex. 4. It shows they spent a total of 34.2 hours of attorney and paralegal time representing plaintiff in this court. Id.
The 406(b) Motion was served on plaintiff, and explicitly advised plaintiff of her right to file a response to the Motion within fourteen days. 406(b) Mtn. at 2.
Plaintiff did not file a response. Defendant, the Commissioner, did file a response to the 406(b) Motion. Defendant takes no position on the reasonableness of the fee request, but advised the court regarding certain legal and other considerations appropriate to its analysis. Counsel Rohlfing filed a reply in support of the 406(b) Motion.
A. Fees Available to Attorneys Who Successfully Represent Social Security Benefit Claimants in Court An attorney who successfully represents a Social Security benefits claimant in court may be awarded as part of the judgment "a reasonable fee . . . not in excess of 25 percent of the total of the past-due benefits" awarded to the claimant. 42 U.S.C. § 406(b)(1)(A). The fee is payable "out of, and not in addition to, the amount of such past-due benefits." Id. Because benefits amounts figuring in the fee calculation are limited to those past due, attorneys may not obtain additional fees based on a claimant's continuing entitlement to benefits.
Fee awards may be made under the Equal Access to Justice Act as well as 42 U.S.C. § 406(b), and such was the case here. As noted above, plaintiff was previously awarded EAJA fees in the total amount of $4,500 for services rendered by counsel in securing the remand of plaintiff's case. An EAJA award, however, offsets an award under § 406(b) so that the total of the past due benefits actually received by the claimant is increased by the amount of the EAJA award up to the point where the claimant could potentially obtain one hundred percent of past-due benefits. Gisbrecht v. Barnhart, 535 U.S. 789, 796, 122 S. Ct. 1817, 152 L. Ed. 2d 996 (2002) (citation omitted).
In Gisbrecht, the Supreme Court resolved a circuit split concerning the appropriate method of calculating fees under § 406(b). Id. at 799. Several circuits, including the Ninth Circuit, had followed the "lodestar" method, under which the number of hours reasonably devoted to each case was multiplied by a reasonable hourly rate. Id. (citations omitted). Other circuits had given effect to an ...