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Werlein v. Saul

United States District Court, E.D. California

August 27, 2019

LORI WERLEIN, Plaintiff,
v.
ANDREW M. SAUL[1], Commissioner of Social Security, Defendant.

          ORDER GRANTING COUNSEL'S MOTION FOR ATTORNEY FEES PURSUANT TO 42 U.S.C. § 406(B) (DOC. 32)

          JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.

         Stephen Rosales, counsel for Plaintiff Lori Werlein, seeks an award of attorney fees pursuant to 42 U.S.C. § 406(b). (Doc. 32) Neither Plaintiff nor the Commissioner of Social Security oppose the motion.[2] For the following reasons, the motion for attorney fees is GRANTED.

         I. Relevant Background

         Plaintiff entered into a contingent fee agreement with the Law Offices of Lawrence D. Rohlfing on August 15, 2014. (Doc. 32-1) The agreement entitled counsel to an award of “25% of the backpay awarded” if judicial review of an administrative decision was required, and the adverse decision of an ALJ was reversed. (Id. at 1) The agreement also required counsel to “seek compensation under the Equal Access to Justice Act, ” and the amount awarded would be credited to Plaintiff “for fees otherwise payable for court work.” (Id.)

         On September 4, 2014, Plaintiff filed a complaint for review of the administrative decision denying his application for Social Security benefits. (Doc. 1) The Court affirmed the findings of the ALJ on January 4, 2016. (Doc. 16) Plaintiff appealed the decision to the Ninth Circuit Court of Appeals, which found “the ALJ erred by failing to explain why he rejected critical aspects of Werlein's subjective symptom testimony.” (Doc. 24 at 2) The Court credited Plaintiff's testimony as true and remanded the matter for payment of benefits on February 28, 2018. (Id. at 6-8) On June 6, 2018, the mandate of the Ninth Circuit took effect. (Doc. 25, 29) Judgment was entered in favor of Plaintiff on June 29, 2018. (Doc. 29)

         Pursuant to the terms of a stipulation between the parties, the Court awarded Plaintiff $6, 000 in attorney fees pursuant to the Equal Access to Justice Act. (Doc. 27 at 1) Upon remand, the Social Security Administration determined Plaintiff was eligible for benefits beginning June 2011. (Doc. 32-3 at 1) In total, Plaintiff was entitled to $72, 042.00 in past due benefits, out of which the Commissioner withheld $18, 010.50 for payment of attorney's fees. (Doc. 32 at 4; Doc. 32-3 at 3)

         Mr. Rosales filed the motion now before the Court on July 19, 2019, seeking fees in the amount of $18, 010. (Doc. 32) Mr. Rosales served Plaintiff with the motion and informed her of the right to respond, to indicate whether she agreed or disagreed with the requested fees within fourteen days of the date of service. (Id. at 2, 11) Plaintiff has not opposed the motion.

         II. Attorney Fees under § 406(b)

         An attorney may seek an award of fees for representation of a Social Security claimant who is awarded benefits:

Whenever a court renders a judgment favorable to a claimant under [42 USC § 401, et seq] 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. . . .

42 U.S.C. § 406(b)(1)(A); see also Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002) (Section 406(b) controls fees awarded for representation of Social Security claimants).

         A contingency fee agreement is unenforceable if it provides for fees exceeding the statutory amount. Gisbrecht, 535 U.S. at 807 (“Congress has provided one boundary line: Agreements are unenforceable to the extent that they provide for fees exceeding 25 percent of the past-due benefits.”).

         III. Discussion and Analysis

         District courts “have been deferential to the terms of contingency fee contracts § 406(b) cases.” Hern v. Barnhart, 262 F.Supp.2d 1033, 1037 (N.D. Cal. 2003). However, the Court must review contingent-fee arrangements “as an independent check, to assure that they yield reasonable results in particular cases.” Gisbrecht, 535 U.S. at 807. In doing so, the Court should consider “the character of the representation and the results the representative achieved.” Id. at 808. In addition, the Court should consider whether the attorney performed in a substandard manner or engaged in dilatory conduct or ...


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