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Rodriguez v. Berryhill

United States District Court, E.D. California

April 3, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.




         On February 28, 2018, counsel for Plaintiff Adina Shannon Rodriguez (“Plaintiff”), Lawrence D. Rohlfing, Esq., filed a motion for an award of attorney's fees pursuant to 42 U.S.C. § 406(b) (the “Motion”). (Doc. 21.) On February 28, 2018, the Court issued a minute order requiring Plaintiff and Defendant to file their objections to the Motion, if any, by no later than March 30, 2018. (Doc. 22.) Plaintiff was served with copies of the Motion and the minute order. (Doc. 23.) On March 30, 2018, the Commissioner filed a statement taking no position as to the reasonableness of the fee request (Doc. 24); Plaintiff did not file any objection to the motion.

         For the reasons set forth below, the motion for an award of attorney's fees is GRANTED in the amount of $11, 100.00, subject to an offset of $4, 717.80 in fees already awarded pursuant to the Equal Access to Justice Act (“EAJA”) on March 15, 2016 (see Doc. 19).


         Plaintiff brought the underlying action seeking judicial review of a final administrative decision denying her claim for disability insurance benefits and supplemental security income under the Social Security Act. (Doc. 1.) On December 28, 2015, upon stipulation by the parties, the Court ordered the case remanded to the agency for further proceedings. (Doc. 16.) On December 30, 2015, judgment was entered in accordance with the Court's order. (Doc. 17.) On remand, the Commissioner awarded benefits to Plaintiff. (Doc. 21 at 3.) On February 28, 2018, the parties stipulated to an award of $4, 717.80 in attorney fees under EAJA (Doc. 19), and on March 15, 2018, the Court entered the stipulated order (Doc. 19).

         On February 20, 2018, the Commissioner issued a notice that retroactive disability benefits had been awarded to Plaintiff and that $11, 103.50, representing 25% of Plaintiff's past-due benefits, had been withheld from Plaintiff's award of disability benefits for payment of any applicable attorney's fees. (Doc. 21-2.) On February 28, 2018, counsel filed a motion for attorney's fees in the amount of $11, 100.00, with an offset of $4, 717.80 for EAJA fees already awarded. (See Doc. 21 at 6.) It is counsel's section 406(b) motion for attorney's fees that is currently pending before the Court.


         Pursuant to the Social Security Act, attorneys may seek a reasonable fee for cases in which they have successfully represented social security claimants. Section 406(b) provides the following:

Whenever a court renders a judgment favorable to a claimant under this 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 representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security may . . . certify the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits . . . .

42 U.S.C. § 406(b)(1)(A) (emphasis added). “In contrast to fees awarded under fee-shifting provisions such as 42 U.S.C. § 1988, the fee is paid by the claimant out of the past-due benefits awarded; the losing party is not responsible for payment.” Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (citing Gisbrecht v. Barnhart, 535 U.S. 789, 802 (2002)). The Commissioner has standing to challenge the award, despite that the section 406(b) attorney's fee award is not paid by the government. Craig v. Sec'y Dep't of Health & Human Servs., 864 F.2d 324, 328 (4th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807. The goal of fee awards under section 406(b) is to provide adequate incentive to represent claimants while ensuring that the usually meager disability benefits received are not greatly depleted. Cotter v. Bowen, 879 F.2d 359, 365 (8th Cir. 1989), abrogated on other grounds in Gisbrecht, 535 U.S. at 807.

         The 25% maximum fee is not an automatic entitlement, and courts are required to ensure that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808-09 (Section 406(b) does not displace contingent-fee agreements within the statutory ceiling; instead, section 406(b) instructs courts to review for reasonableness fees yielded by those agreements). “Within the 25 percent boundary . . . the attorney for the successful claimant must show that the fee sought is reasonable for the services rendered.” Id. at 807; see also Crawford, 586 F.3d at 1148 (holding that section 406(b) “does not specify how courts should determine whether a requested fee is reasonable” but “provides only that the fee must not exceed 25% of the past-due benefits awarded”).

         Generally, “a district court charged with determining a reasonable fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee arrangements, ' . . . ‘looking first to the contingent-fee agreement, then testing it for reasonableness.'” Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). The United States Supreme Court has identified several factors that may be considered in determining whether a fee award under a contingent-fee agreement is unreasonable and therefore subject to reduction by the court: (1) the character of the representation; (2) the results achieved by the representative; (3) whether the attorney engaged in dilatory conduct in order to increase the accrued amount of past-due benefits; (4) whether the benefits are large in comparison to the amount of time counsel spent on the case; and (5) the attorney's record of hours worked and counsel's regular hourly billing charge for non-contingent cases. Id. (citing Gisbrecht, 535 U.S. at 807-08).

         Here, the fee agreement between Plaintiff and the Law Offices of Lawrence D. Rohlfing, LLP, signed by ...

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