Case Name in Social Security Case - Unavailable

1
3:22-cv-01577-VET
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
MYIESHA P., 1
Plaintiff,
v.
FRANK J. BISIGNANO, Commissioner
of Social Security, 2
Defendant.
Case No.: 3:22-cv-01577-VET
ORDER GRANTING MOTION FOR
ATTORNEY FEES PURSUANT TO
42 U.S.C. § 406(b)
[ECF No. 36]
Before the court is Plaintiff’s counsel’s Motion for Attorney Fees Pursuant to 42
U.S.C § 406(b) (“Motion”). ECF No. 36. Plaintiff’s counsel, Matthew F. Holmberg
(“Counsel”), moves for attorney’s fees in the amount of $36,413.50, with a credit to
Plaintiff Myiesha P. (“Plaintiff”) for Equal Access to Justice Act (“EAJA”) fees previously
paid to the Law Offices of Lawrence D. Rohlfing, Inc., CPC (“Counsel’s Firm”) in the
amount of $5,430.45. Id. at 1. Defendant Commissioner of Social Security (“Agency” or
1 Partially redacted in compliance with Civil Local Rule 7.1(e)(6)(b).
2 Frank 	J. 	Bisignano, 	Commissioner 	of 	the 	Social 	Security 	Administration, 	is
automatically substituted for Kilolo Kijakazi pursuant to Fed. R. Civ. P. 25(d).
Case 3:22-cv-01577-VET Document 38 Filed 03/25/26 PageID.<pageID> Page 1
of 7

2
3:22-cv-01577-VET
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
“Commissioner”) filed a response (“Response”). ECF No. 37. Having considered the
parties’ filings, applicable law, and the record before it, and for the reasons discussed
below, the Court GRANTS the Motion.
I. 	BACKGROUND
On October 13, 2022, Plaintiff filed the Complaint seeking judicial review of the
Commissioner’s final decision denying disability insurance benefits. ECF No. 1. Prior to
the filling of the Complaint, Plaintiff and Counsel entered into a Social Security
Representation Agreement (“Fee Agreement”). ECF No. 36-1. Therein, the parties agreed
that Counsel’s fee for successful prosecution of this action would be “25% of the past-due
benefits awarded upon reversal of any unfavorable ALJ decision for work before the
court.” ECF 36-1 at ¶ 4.
On May 17, 2023, the parties jointly moved for resolution of the issues presented by
Plaintiff concerning the Agency’s final decision. ECF No. 17. On September 5, 2024, the
Court vacated the Commissioner’s final decision and remanded the matter for further
proceedings consistent with the Court’s opinion. ECF No. 30. On November 21, 2024,
based on a joint motion, the Court awarded Plaintiff $5,430.45 in attorney’s fees as
authorized by EAJA. ECF No. 35. On remand, the Commissioner issued a favorable
decision and found Plaintiff disabled since July 13, 2017. ECF No. 36-2 at 10. In the Notice
of Award, the Commissioner awarded Plaintiff $182,387 in past-due benefits and withheld
$45,596.75 of the past-due benefits for attorney’s fees. ECF Nos. 36 at 7, n.2, 36-3 at 2–3.
The Agency also awarded monthly benefits.3
3 The Notice of Award states that Plaintiff “will receive $45,596.75 each month.” ECF
No. 36-3 at 2. The Court suspects this figure represents a typographical error, in part
because it is the same amount withheld for attorney’s fees, i.e., “[w]e withheld
$45,596.75 from your past due benefits in case we need to pay your representative.” Id.
at 3. Further, per the ALJ’s decision, the Court notes that monthly benefits were
suspended as of August 2024 and remained suspended for months in which Plaintiff
performed Substantial Gainful Activity. At this time, it is not clear if Plaintiff continues
to perform Substantial Gainful Activity. ECF No. 36-2 at 10.
Case 3:22-cv-01577-VET Document 38 Filed 03/25/26 PageID.<pageID> Page 2
of 7

3
3:22-cv-01577-VET
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The past-due benefits amount, i.e., $182,387, represents the sum of monthly benefits
from May 2018 through November 2025. See ECF No. 36-3 at 1–2. However, as Counsel
notes, this amount is inconsistent with the Agency’s final decision, which concluded that
“benefits [were] suspended beginning August 2024” when Plaintiff began engaging in
Substantial Gainful Activity (“SGA”). ECF Nos. 36 at 7, n.2; see also ECF No. 36-2 at 5,
10. Accordingly, to be consistent with the ALJ’s findings, Counsel re-calculated the past-
due benefits amount based on monthly benefits from May 2018 through July 2024, which
amounts to $145,654.00. ECF No. 36-4. Based on this recalculation, 25% of the past-due
benefits amount equates to $36,413.50 in attorney’s fees. Id.
Counsel now moves for (i) attorney’s fees in the amount of $36,413.50 pursuant to
42 U.S.C. § 406(b) and (ii) an order directing Counsel’s Firm to reimburse Plaintiff
$5,430.45 for the EAJA fees previously awarded. ECF No. 36 at 1. Counsel’s Firm
expended a total of 24.46 hours, which includes 5.66 hours by two paralegals and 18.8
hours by Counsel, for an effective hourly rate of approximately $1,488.70.4 ECF Nos. 36
at 5, 36-5. The requested fee represents exactly 25% of Plaintiff’s past-due benefits (the
same percentage agreed upon in the Fee Agreement). In support of his request, Counsel
submits the Fee Agreement (ECF No. 36-1), the Agency’s Notice of Decision and Notice
of Award, dated November 25, 2025 and December 24, 2025, respectively (ECF Nos. 36-
2. 36-3), Counsel’s re-calculation of Plaintiff’s past-due benefits amount (ECF No. 36-4),
Counsel’s billing statements (ECF No. 36-5), Fiscal Year 2024 Disability Decision Data
(ECF No. 36-6), Counsel’s resume (ECF No. 36-7), and the U.S. Consumer Law Attorney
Fee Survey Report 2017-2018 (ECF No. 36-8). Counsel argues, in part, that an award of
$36,413.50 is reasonable compared to the Commissioner’s withholding of $45,596.75 and
fee awards in other cases, and given the results achieved. ECF No. 36 at 7.
4 The effective hourly rate was calculated by dividing $36,413.50 by 24.46 total hours.
Case 3:22-cv-01577-VET Document 38 Filed 03/25/26 PageID.<pageID> Page 3
of 7

4
3:22-cv-01577-VET
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
On January 27, 2026, the Commissioner responded that it “neither supports not
opposes Counsel’s request for attorney’s fees under 42 U.S.C. § 406(b),” but requests that
the Court direct Counsel to reimburse any fees previously received under EAJA. ECF No.
37 at 3. The Commissioner notes that Counsel worked 24.46 hours representing Plaintiff
in this action. Id. at 2. As such, per the Commissioner, attorney’s fees in the amount of
$36,413.50 divided by 24.46 hours of work by Counsel would result in a reimbursement
rate of $1,488.70. Id. Plaintiff did not respond to the Motion and nothing in the record
indicates that Plaintiff opposes the fee request. See generally ECF.
II. 	LEGAL STANDARD
Pursuant to the Social Security Act, “[w]henever a court renders a judgment
favorable to a claimant . . . , 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). In contrast to an EAJA
award, which is paid by the government to the claimant, an award under Section 406(b)
“allows the claimant’s attorney to collect his or her fee out of the claimant’s past-due
disability benefits.” Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 1991). Moreover,
attorneys may receive fees under both EAJA and Section 406(b) but must refund to the
claimant the amount of the smaller fee. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002);
Parrish v. Comm’r Soc. Sec. Admin., 698 F.3d 1215, 1218 (9th Cir. 2012).
Fee determinations begin by “looking first to the contingent-fee agreement, then
testing it for reasonableness.” See Gisbrecht, 535 U.S. at 807–808 (concluding that Section
406(b) “does not displace contingent-fee agreements as the primary means by which fees
are set for successfully representing Social Security benefits claimants in court,” but rather
“calls for court review of such arrangements as an independent check, to assure that they
yield reasonable results in particular cases”); see also Crawford v. Astrue, 586 F.3d 1142,
1149 (9th Cir. 2009). As such, the 25% statutory maximum fee is not an automatic
entitlement, and “[w]ithin the 25 percent boundary . . . , the attorney for the successful
Case 3:22-cv-01577-VET Document 38 Filed 03/25/26 PageID.<pageID> Page 4
of 7

5
3:22-cv-01577-VET
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
claimant must show that the fee sought is reasonable for the services rendered.” Gisbrecht,
535 U.S. at 807. In evaluating the reasonableness of an attorney’s fee request, courts should
consider “the character of the representation and the results the representative achieved.”
Id. at 808. As part of this evaluation, 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,”
i.e., the requested fees are excessively large in relation to the benefits achieved. Crawford,
586 F.3d at 1151 (noting there is no definitive list of factors to consider when determining
whether a fee is reasonable). Further, as evidence of reasonableness, the court may require
counsel to submit a record of hours spent and a statement of normal billing charges. Id.
III. 	DISCUSSION
Based on the reasonableness test articulated in Gisbrecht and Crawford, and review
of the information submitted in support of the Motion, the Court finds that Counsel’s
request for $36,413.50 in attorney’s fees is reasonable.
Beginning with the operative fee agreement, Plaintiff agreed to a fee of 25% of past-
due benefits following the reversal of any unfavorable ALJ decision. ECF No. 36-1.
Because 	the 	Court 	vacated 	the 	Commissioner’s 	unfavorable 	decision 	and 	the
Commissioner issued a favorable decision on remand, see ECF Nos. 30, 36-2, this fee
provision is both applicable and within the statutory limit. See 42 U.S.C. § 406(b)(1)(A).
Although 25% of the past-due benefits amount calculated in the Notice of Award is
$45,596.75, Counsel reduced his request and seeks $36,413.50 in attorney’s fees, which
represents 25% of past-due benefits based on his recalculation. See ECF No. 36 at 5.
Turning next to the character of the representation, there is no evidence in the record
of Counsel providing substandard performance. On the contrary, Counsel’s Firm expended
a total of 24.46 hours reviewing the ALJ decision, drafting the Complaint, communicating
and corresponding with Plaintiff, researching and drafting the motion for judicial review
and reply, and preparing the request for EAJA fees. See ECF No. 36-5. Within those 24.46
hours, Counsel engaged in successful motion practice that ultimately resulted in the
reversal of the Commissioner’s decision and an award of at least $145,654.00 in past-due
Case 3:22-cv-01577-VET Document 38 Filed 03/25/26 PageID.<pageID> Page 5
of 7

6
3:22-cv-01577-VET
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
benefits for Plaintiff. See ECF No. 36-3 at 2. This is a substantial award with significant
benefits for Plaintiff.
Additionally, there is no evidence of delay or dilatory conduct by Counsel. Although
the parties stipulated to a 30-day extension, the extension was to accommodate the
Commissioner who needed additional time to prepare the administrative record. ECF No.
11. Thereafter, Counsel conferred with the Agency to try to resolve the case, and when
settlement was not possible, the parties timely filed the Joint Motion for Judicial Review.
See ECF Nos. 13, 15, 17. Thus, Counsel met all deadlines laid out in the scheduling order.
The Court further recognizes that a fee request for $36,413.50 based on 24.46 hours
of work reflects an effective hourly rate of $1,488.70. ECF No. 36 at 8. This figure,
however, is consistent with fees awarded in several cases in this District, with hourly rates
ranging from $1,438 to $1,990. See, e.g., Luzette B. v. King, No. 23cv483-MSB, 2025 U.S.
Dist. LEXIS 19011, at *7 (S.D. Cal. Feb. 3, 2025) (awarding fees representing 20.52% of
plaintiff’s past-due benefits for an effective hourly rate of $1,573.03 where counsel spent
7.4 hours and the paralegal spent 1.5 hours on plaintiff’s case); Habibullah A. v. Colvin,
No. 20cv1971-AGS, 2025 U.S. Dist. LEXIS 14261, at *3 (S.D. Cal. Jan. 27, 2025)
(awarding fees representing 23% of plaintiff’s past-due benefits for an effective hourly rate
of $1,707.31 where counsel spent 20.5 hours and the paralegal spent 2.6 hours on plaintiff’s
case); Watkins v. O’Malley, No. 21cv101-BLM, 2024 U.S. Dist. LEXIS 93524, at *6–8
(S.D. Cal. May 24, 2024) (awarding fees representing 25% of plaintiff’s past-due benefits
for an effective hourly rate of $1,566 for a combined 20 hours spent by the attorney and
paralegal on plaintiff’s case); Roland S. v. Kijakazi, No. 20cv01068-AHG, 2023 U.S. Dist.
LEXIS 189176, at *9 (S.D. Cal. Oct. 20, 2023) (awarding fees representing 15.54% of
plaintiff’s past-due benefits for an effective hourly rate of $1,438.35 where counsel spent
5.36 hours and the paralegal spent 3.4 hours on plaintiff’s case); Reddick v. Berryhill, No.
16-CV-29-BTM-BLM, 2019 U.S. Dist. LEXIS 91736, at *5–6 (S.D. Cal. May 30, 2019)
(on reconsideration, awarding fees representing 19.45% of plaintiff’s past-due benefits for
Case 3:22-cv-01577-VET Document 38 Filed 03/25/26 PageID.<pageID> Page 6
of 7

7
3:22-cv-01577-VET
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
an effective hourly rate of $1,990.74 where counsel spent 18.2 hours and the paralegal
spent 3.4 hours on plaintiff’s case).
Moreover, 	the 	Court 	notes 	that 	Counsel 	agreed 	to 	the 	representation 	on 	a
contingency fee basis. As such, Counsel assumed a substantial risk of not recovering any
attorney’s fees. See Ayersman v. Berryhill, No. 17-cv-1121-WQH-JMA, 2021 U.S. Dist.
LEXIS 1253, at *6–7 (S.D. Cal. Jan. 5, 2021) (recognizing “there runs a substantial risk of
loss” with contingency contracts). Having achieved an excellent outcome for Plaintiff, the
Court will not penalize Counsel for his efficiency in this action. Id. at *6–7 (“Courts are
loathe to penalize experienced counsel for efficient representation under contingency
agreements, particularly in the social security context.”).
In sum, the Court sees no basis to reduce the fee award requested. As to the EAJA
fees, Counsel may not keep attorney’s fees awarded under both EAJA and Section 406(b).
Accordingly, Counsel’s Firm shall refund the smaller fee to Plaintiff. Gisbrecht, 535 U.S.
at 796.
IV. 	CONCLUSION
For the reasons set forth above, the Court GRANTS the Motion (ECF No. 36) and
awards the Law Offices of Lawrence D. Rohlfing, Inc., CPC attorney’s fees in the amount
of $36.413.50. The Court further ORDERS the Law Offices of Lawrence D. Rohlfing,
Inc., CPC to reimburse Plaintiff the amount of $5,430.45 for the EAJA fees previously
awarded by this Court.
IT IS SO ORDERED.
Dated: March 25, 2026 	_______________________________
Honorable Valerie E. Torres
United States Magistrate Judge
Case 3:22-cv-01577-VET Document 38 Filed 03/25/26 PageID.<pageID> Page 7
of 7