Turner v. Kijakazi

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
JAMES T.1,
Plaintiff,
v.
FRANK BISIGNANO, Commissioner of
Social Security,
Defendant.
Case No.: 3:22-cv-00694-SBC
ORDER GRANTING AMENDED
JOINT MOTION FOR (1) RELIEF
PURSUANT TO FED. R. CIV. P. 60(b)
TO VACATE COURT’S PREVIOUS
ORDER AND (2) ENTRY OF NEW
ORDER
AMENDED ORDER GRANTING
PLAINTIFF’S COUNSEL’S MOTION
FOR ATTORNEYS’ FEES
PURSUANT TO 42 U.S.C. § 406(b)
[Dkt. No. 37]
Pending before the Court is the parties’ January 5, 2026 Joint Motion for (1) Relief
Pursuant to Fed. R. Civ. 60(b) to Vacate Court’s Previous Order and (2) Entry of New
Order (Dkt. No. 37, hereinafter “Joint Motion”). For the reasons discussed below, the Joint
Motion is GRANTED, the Court’s previous Order Granting Plaintiff’s Counsel’s Motion
1 The Court refers to Plaintiff using only his first name and last initial pursuant to the
Court’s Civil Local Rules. See S.D. Cal. Civ. R. 7.1(e)(6)(b).
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for Attorneys’ Fees Pursuant to 42 U.S.C. § 406(b) (Dkt. No. 32) is VACATED, and the
Court hereby issues the following Amended Order Granting Plaintiff’s Counsel’s Motion
for Attorneys’ Fees Pursuant to 42 U.S.C. § 406(b).
I. PROCEDURAL HISTORY
Plaintiff’s counsel, Monica Perales, of the Law Offices of Lawrence D. Rohlfing,
Inc., CPC, filed a motion for attorneys’ fees pursuant to 42 U.S.C. § 406(b), in which
counsel requested an order granting attorneys’ fees in the amount of $40,336.00 (Dkt. No.
29) based on a Notice of Award dated April 20, 2025, totaling $161,347.00 (Dkt. Nos. 29-
3; 29-4). The Court issued a briefing schedule providing a deadline for Plaintiff and
Defendant to respond to the motion (Dkt. No. 30). Defendant responded to the motion,
stating that the Commissioner neither supports nor opposes Plaintiff’s counsel’s request
for attorneys’ fees (Dkt. No. 31). Plaintiff did not file a response. Accordingly, the Court
issued an order granting counsel’s motion and awarding $40,336.00 in fees (Dkt. No. 32).
An updated Notice of Award dated October 1, 2025, reflects past-due benefits of
$146,008.00 (Dkt. No. 37 at 6). In light of the changed Notice of Award, on December 5,
2025, the Parties filed a Joint Motion for Relief Pursuant to Fed. R. Civ. P. 60(b) to Vacate
Order Granting Motion for Attorneys’ Fees Pursuant to 42 U.S.C. § 406(b) and Entry of
New Order (Dkt. No. 34). This Joint Motion was amended and refiled on December 31,
2025, to include a copy of the updated Notice of Award (Dkt. No. 37), at the request of the
Court (Dkt. Nos. 35; 36).
“On motion and just terms, the court may relieve a party or its legal representative
from a final judgment, order, or proceeding” due to mistake, inadvertence, surprise, or
excusable neglect. Fed R. Civ. P. 60(b)(1). Here, the original attorneys’ fee award of
$40,336.00 was derived from the initial Notice of Award (Dkt. Nos. 29-3; 29-4) rather than
the updated Notice of Award (Dkt. No. 37 at 6). If the attorneys’ fee is not also updated,
the $40,336.00 originally awarded exceeds 25% of claimant’s actual past-due benefits,
which is not permissible. See 42 U.S.C. § 406(b)(1)(A); Gisbrecht v. Barnhart, 535 U.S.
789, 807-09 (2002). The proper calculation under 42 U.S.C. § 406(b) based on the updated
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Notice of Award for $146,008.00 is for $36,502.00 in attorneys’ fees (Dkt. No. 37 at 3).
II. BACKGROUND
On May 16, 2022, Plaintiff initiated this action against Defendant Commissioner of
Social Security for judicial review under 42 U.S.C. § 405(g) of a final adverse decision for
social security disability benefits (Dkt. No. 1). On May 20, 2022, the parties consented to
Magistrate Judge jurisdiction over the case (Dkt. No. 7). On January 16, 2024, the Court
resolved the parties’ joint motion for judicial review in favor of Plaintiff and remanded this
case for further administrative proceedings (Dkt. No. 26). The Court also granted the
parties’ joint motion for attorneys’ fees under the Equal Access to Justice Act (“EAJA”),
28 U.S.C. § 2412(d), in the amount of $5,261.00 (Dkt. No. 28).
On remand, the Administrative Law Judge (“ALJ”) issued a “fully favorable”
decision and found Plaintiff disabled as of April 1, 2018 (Dkt. No. 29-2). The Social
Security Administration issued a Notice of Award on April 20, 2025, in which Plaintiff
was awarded approximately $161,347.00 in past-due disability benefits (Dkt. Nos. 29-3;
29-4). An updated Notice of Award dated October 1, 2025, awarded $146,008.00 in past-
due disability benefits (Dkt. No. 37).
In the motion presently before the Court, Plaintiff’s counsel seeks $36,502.00 in
attorneys’ fees pursuant to a representation agreement, dated April 20, 2021, in which
Plaintiff agreed to pay counsel “25% of the past due benefits awarded upon reversal of any
unfavorable ALJ decision for work before the Social Security Administration” (Dkt. Nos.
29-1; 37).
III. LEGAL STANDARD
Under 42 U.S.C. § 406(b), “a court may allow a reasonable fee . . . not in excess of
25 percent of the . . . past-due benefits awards to the claimant” as attorneys’ fees for
representation in court proceedings. “[A] 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 v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (citing
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Gisbrecht v. Barnhart, 535 U.S. 789 (2002)). Under this framework, the court does not
start with a lodestar calculation, rather, the court “first look[s] to the fee agreement and
then adjusts downward if the attorney provided substandard representation.” Id. at 1151.
“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.” Id.
An attorneys’ fee award under § 406(b) is paid by the claimant out of the past-due
benefits awarded and the losing party is not responsible for payment. Gisbrecht, 535 U.S.
at 802, 122 S. Ct. 1817. Attorneys are permitted to seek recovery under both the EAJA and
§ 406(b), but to keep the larger fee, must refund the smaller fee to the claimant. Id. at 796,
122 S. Ct. 1817; Parrish v. Comm’r Soc. Sec. Admin., 698 F.3d 1215, 1218 (9th Cir. 2012).
IV. DISCUSSION
The contingency fee agreement between Plaintiff and his counsel, the Law Offices
of Lawrence D. Rohlfing, Inc., CPC, provides that Plaintiff’s counsel was to be paid a
maximum of twenty-five percent of past-due benefits awarded to Plaintiff (Dkt. No. 29-1).
As such, the contingency fee agreement is within the statutory ceiling. See 42 U.S.C. §
406(b)(1)(A). On remand, the Commissioner awarded Plaintiff approximately $146,008.00
in past-due benefits (Dkt. No. 37). Twenty-five percent of that amount is $36,502.00.
Plaintiff’s counsel seeks an attorneys’ fee award of $36,502.00, exactly twenty-five percent
of the past-due benefits awarded to Plaintiff.
Applying the first two Crawford factors, nothing in this case suggests that Plaintiff’s
counsel rendered substandard representation or delayed this litigation. See Crawford, 586
F.3d at 1151-52. Plaintiff’s counsel timely and efficiently litigated this case, achieved
remand for her client, and secured a “fully favorable” decision on remand. Plaintiff’s
counsel’s representation resulted in a sizeable award of past-due benefits to Plaintiff, as
well as monthly benefits going forward (Dkt. Nos. 29-3; 29-4; 37).
Next, the Court considers the third Crawford factor, whether the requested fees are
excessively large in relation to the benefits achieved. See Crawford, 586 F.3d at 1151-52.
Plaintiff’s counsel’s firm expended 18.2 hours of attorney time and 5.10 hours of paralegal
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time, for a total of 23.3 hours, while representing Plaintiff through the entry of the order of
remand (Dkt. Nos. 29 at 16; 29-5 at 1-2). Dividing the requested fees by the number of
hours expended results in an effective hourly rate of $1,566.61, which may appear high.
However, this rate falls within the range of hourly rates awarded in other Social Security
cases. See, e.g., Tamiko T. v. Kijakazi, Case No.: 20cv1229-KSC, 2023 WL 253114, at *3
(S.D. Cal. Jan. 18, 2023) (finding an effective hourly rate of $1,339.29 “falls within the
range of hourly rates charged by attorneys in other matters based on the Court’s own
observations and according to the information provided by counsel in support of the
Motion”); Reddick v. Berryhill, Case No.: 16-cv-29-BTM-BLM, 2019 WL 2330895, at *2
(S.D. Cal. May 30, 2019) (determining on reconsideration that a fee award of $43,000 for
21.6 hours of work by counsel on the case was reasonable, which equates to an hourly rate
of $1,990.74); Roland S. v. Kijakazi, No. 20-cv-1068, 2023 WL 6966153, at *3 (S.D. Cal.
Oct. 20, 2023) (approving an effective hourly rate of $1,438.35).
Furthermore, in taking on the case on a contingency basis, Plaintiff’s counsel bore
the risk in the event the appeal proved unsuccessful. Thus, in light of these factors and
circumstances, the Court finds that the requested fee is reasonable, and a downward
adjustment is not warranted. Therefore, the Court concludes that Plaintiff’s counsel’s
attorneys’ fees request of $36,502.00 is reasonable.
Having approved of the fees, an adjustment must be made in light of the Court’s
prior award under the EAJA in the amount of $5,261.00. “[I]n order to maximize the award
of past-due benefits to claimants and to avoid giving double compensation to attorneys, the
savings provision requires a lawyer to offset any fees received under § 406(b) with any
award that the attorney receives under § 2412 if the two were for the ‘same work.’” Parrish
v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1218 (9th Cir. 2012). Thus, as Plaintiff’s
counsel has also acknowledged, the previous amount recovered under the EAJA must be
reimbursed to Plaintiff (see Dkt. No. 29 at 11).
///
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V. CONCLUSION
For the foregoing reasons, the Joint Motion is GRANTED, the Court’s previous
Order Granting Plaintiff’s Counsel’s Motion for Attorneys’ Fees Pursuant to 42 U.S.C. §
406(b) filed August 21, 2025, is VACATED, and the Court GRANTS Plaintiff’s motion
for authorization of attorneys’ fees pursuant to 42 U.S.C. § 406(b). The Court approves the
requested fees in the amount of $36,502.00, to be paid out of Plaintiff’s past-due benefits
in accordance with the Social Security Administration’s policy. IT IS FURTHER
ORDERED that Plaintiff’s Counsel shall, after receipt of the above-awarded fee, refund
to Plaintiff the lesser of the fee awarded under 42 U.S.C. § 406(b) and any fees awarded
under the Equal Access to Justice Act. In light of this order, the parties’ previously filed
motion (Dkt. No. 34) is TERMINATED as moot.
IT IS SO ORDERED.
Dated: January 12, 2026
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