United States District Court, S.D. California
ORDER GRANTING PLAINTIFF'S COUNSEL'S MOTION
FOR ATTORNEYS' FEES PURSUANT TO 42 U.S.C. § 406(B)
[DOC. NO. 36]
Michael M. Anello, United States District Judge
Cho, counsel for Gabriel Berry (“Plaintiff”),
moves for an award of attorneys' fees pursuant to 42
U.S.C. § 406(b) in the amount of $20, 400.00.
See Doc. No. 36-1. Andrew Saul, the Commissioner for
Social Security, (“Defendant”) takes no position
on the reasonableness of counsel's request. The Court
found the matter suitable for determination on the papers and
without oral argument pursuant to Federal Rule of Civil
Procedure 78(b) and Civil Local Rule 7.1.d.1. See
Doc. No. 37. For the reasons set forth below, the Court
GRANTS Plaintiff's counsel's motion
for attorneys' fees.
30, 2016, Plaintiff filed this social security appeal
challenging the denial of his application for disability
benefits. See Doc. No. 1. The parties filed
cross-motions for summary judgment, and the assigned
magistrate judge issued a well-reasoned Report recommending
that the Court grant Plaintiff's motion. See
Doc. Nos. 19, 22, 31. On September 6, 2017, the Court adopted
the Report and Recommendation in its entirety and remanded
the action to the Social Security Administration for further
proceedings. See Doc. No. 32.
remand, the administrative law judge found Plaintiff disabled
within the meaning of the Social Security Act as of January
5, 2009. See Doc. No. 36-3 at 13, 14. On August 21,
2019, the Social Security Administration issued a Notice of
Award, which acknowledged Plaintiff's past-due benefits
amounted to $81, 987.42. See Doc. No. 36-4 at 3.
Plaintiff's counsel now moves for an award of $20, 400.00
in attorneys' fees for representing Plaintiff in this
action, with credit for the Equal Access to Justice Act
(“EAJA”) fees previously paid in the amount of
$8, 800.00, thus asking for certification of the net fee of
$11, 600.00. See Doc. No. 36-1, at 2, 8.
42 U.S.C. § 406(b), a court entering judgment in favor
of [a social security] claimant who was represented by an
attorney ‘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.'” Crawford v. Astrue, 586 F.3d
1142, 1147 (9th Cir. 2009) (en banc) (quoting §
406(b)(1)(A)). “Within the 25 percent boundary, . . .
the attorney for the successful claimant must show that the
fee sought is reasonable for the services rendered.”
Gisbrecht v. Barnhart, 535 U.S. 789, 807
district court charged with determining a reasonable fee
award under § 406(b)(1)(A) must respect ‘the
primacy of lawful attorney-client fee agreements,' . . .
‘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). When determining
reasonableness of the fee award, courts must consider
“whether the amount need be reduced, not whether the
loadstar amount should be enhanced.” Id. at
1149. While there is not a definitive list of factors, courts
should consider “the character of the representation
and the results the representative achieved.”
Gisbrecht, 535 U.S. at 808. “The court may
properly reduce the fee for substandard performance, delay,
or benefits that are not in proportion to the time spent on
the case.” Crawford, 586 F.3d at 1151.
“an EAJA award offsets an award under Section 406(b),
so that the [amount of the total past-due benefits the
claimant actually receives] will be increased by the . . .
EAJA award up to the point the claimant receives 100 percent
of the past-due benefits.” Gisbrecht, 535 U.S.
March 26, 2013, Plaintiff and the Law Offices of Lawrence D.
Rohlfing entered into a Social Security Representation
Agreement (“Agreement”). Doc. No. 36-2. Pursuant
to the Agreement, Plaintiff agreed to pay counsel a
contingency-fee of up to 25% of past-due benefits awarded by
the Commissioner. See Doc. No 36-1 at 9; see
also Doc. No. 36-2. The administrative proceedings
became final in August 2019 when the Social Security
Administration issued its Notice of Award. See Doc.
No. 36-4. Plaintiff's counsel seeks a total award of $20,
400.00 in attorneys' fees and “bases this fee on
25% of the net payable past due benefits.” Doc. No.
36-1 at 3. Counsel argues that the amount sought in the
instant motion “falls within the range of
reasonable” considering “counsel's firm
expended 50.65 combined hours before the District Court from
the two civil actions that were necessary to the eventual
granting of benefits.” Id. at 2. Additionally,
if granted by the Court, this award would then be further
reduced by the $8, 800.00 that has already been received in
attorneys' fees under the EAJA. Id.
initial matter, the Court notes a seeming discrepancy in the
gross and net award sought. Counsel's notice of motion
states that the gross fee is $21, 900.00.
Doc. No. 36 at 1. However, counsel's memorandum of points
and authorities provides that the amount sought is $20,
400.00. Doc. No. 36-1 at 2, 3, 4, 5, 6, 8. Counsel
states that he seeks “a fee of $20, 400.00 representing
25% of past due benefits.” Id. at 6. Counsel
represented Plaintiff “on a contingency fee basis of
25%.” Id. at 9; see also Doc. No.
36-2 at 1. A fee award of $21, 900.00 would exceed 25% in
light of the $81, 987.42 in past due benefits. Accordingly,
the Court finds counsel's motion as one seeking
attorneys' fees for $20, 400.00.
counsel claims the net fee-after accounting for the
$8, 800.00 previously paid-is $13, 100.00 in his
notice of motion and three times in the memorandum of points
and authorities. Doc. No. 36 at 2; Doc. No. 36-1 at 6, 7.
However, counsel's memorandum of points and authorities
also claims twice that the net fee is $11, 600.00.
Doc. No. 36-1 at 2, 8. Given the discussion regarding the
gross fee, supra, the Court finds the intended net
fee sought is $11, 600.00.
careful review of the documents submitted, and the applicable
law, the Court finds that counsel's fee request is
reasonable. Plaintiff's counsel expended 50.65 hours on
this case. Doc. No. 36-1 at 2; Doc. No 36-5 at 2, 4. The
de facto hourly rate is $402.76, which falls on the
low end of the range that has been approved by courts in
similar cases, including this Court.See Crawford, 586
F.3d at 1153 (approving de facto hourly rates of
$519, $875, and $902 in 2009); Martinez v.
Berryhill, No. 13-cv-272-JLS (JLB), 2017 WL 4700078, at
*3 (S.D. Cal. Oct. 19, 2017) (approving de facto
hourly rate of $886.52 and noting that “[w]hile such an
hourly rate is on the higher end charged for social security
appeals, the Court nonetheless concludes that the fee is
reasonable in the present case.”); Richardson v.
Colvin, No. 15-cv-1456-MMA (BLM), 2017 WL 1683062, at *2
(S.D. Cal. May 2, 2017) (approving de facto hourly
rate of $770); Nash v. Colvin, No. 12-cv-2781-GPC
(RBB), 2014 WL 5801353, at *2 (S.D. Cal. Nov. 7, 2014)
(approving de facto hourly rate of $656); Sproul
v. Astrue, No. 11-cv-1000-IEG (DHB), 2013 WL 394053, at
*2 (S.D. Cal. Jan. 30 2013) (approving de facto
hourly rate of $800). Plaintiff's counsel has also
submitted a billing statement detailing the work performed to