Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DEBORAH D.,1 Case No.: 21cv1568-MSB 12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. ATTORNEY’S FEES PURSUANT TO 42 U.S.C. § 406(b) [ECF NO. 22] 14 FRANK BISIGNANO, Commissioner of the Social Security Administration,2 15 Defendant. 16 17 18 On February 21, 2025, Martha Yancey (“Petitioner”), counsel for Plaintiff Deborah 19 D. (“Plaintiff”), filed a Motion for Attorney’s Fees Pursuant to 42 U.S.C. § 406(b), 20 requesting that the Court award attorney’s fees in the amount of $29,847.25 (ECF No. 21 22 (“Motion”).) For the reasons set forth below, the Court GRANTS the Motion. 22 23 24 1 Under Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security cases under 42 U.S.C. § 405(g)] will refer to any non-government parties by using only their first name and last initial.” 25 2 In May 2025, Frank Bisignano was sworn in as Commissioner of the Social Security Administration. 26 See https://www.ssa.gov/agency/commissioner.html (last visited Jan. 26, 2026). Accordingly, Frank Bisignano is substituted as the defendant in this lawsuit. See Fed. R. Civ. P. 25(d) (“An action does not 27 abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to 2 On September 3, 2021, Plaintiff initiated the instant civil action against the 3 Commissioner of Social Security (“the Commissioner”), pursuant to 42 U.S.C. § 405(g), 4 seeking judicial review of the Commissioner’s decision to deny Plaintiff’s application for 5 disability insurance benefits. (ECF No. 1.) On March 28, 2022, the Commissioner filed 6 the Administrative Record. (ECF No. 8.) On August 16, 2022, the parties filed a Joint 7 Motion for Summary Judgment, in which Plaintiff asked the Court to reverse the 8 Commissioner’s decision and either award her benefits or remand the action to the 9 Social Security Administration (“SSA”) for further administrative proceedings pursuant 10 to 42 U.S.C. § 405(g). (ECF No. 14). On March 15, 2023, the Court reversed the 11 Commissioner’s decision and remanded the action to the SSA for further administrative 12 proceedings. (ECF No. 18.) 13 On April 19, 2023, the parties filed a Joint Motion for the Award of Attorney’s 14 Fees Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (ECF No. 15 20.) That same day, the Court granted the Joint Motion and awarded attorney’s fees in 16 the amount of $9,000.00. (ECF No. 21.) 17 On February 21, 2025, Petitioner filed the instant Motion, seeking attorney’s fees 18 in the amount of $29,847.25, pursuant to 42 U.S.C. § 406(b) (“Section 406(b)”). (ECF No. 19 22.) In support of the Motion, Petitioner explains that Plaintiff prevailed on remand to 20 the SSA, and the SSA awarded Plaintiff $119,389.00 in total past-due benefits. (Id. at 4.) 21 Petitioner contends that an award of $29,847.25 is reasonable given “Plaintiff’s case 22 was not a run-of-the-mill Social Security [] case; Plaintiff’s case was fact-driven and 23 required a thorough analysis of the [Administrative] Record.” (Id.) However, Petitioner 24 acknowledges that Plaintiff is owed a credit of $9,000.00 for the fees that were 25 previously awarded by this Court under the EAJA. (See id. at 5; see also ECF No. 21.) 26 On February 24, 2025, the Court issued a briefing schedule in which the Court 27 notified Plaintiff of her right to oppose the Motion and provided a simultaneous 2 Commissioner responded that “the Commissioner neither supports nor opposes 3 [Petitioner]’s request for attorney’s fees under 42 U.S.C. § 406(b)” but requested that 4 the Court direct Petitioner to reimburse any fees previously received under the EAJA to 5 Plaintiff. (ECF No. 24 at 3.) 6 II. LEGAL STANDARD 7 Under the Social Security Act, a court that has rendered a judgment in favor of a 8 Social Security claimant who was represented by an attorney may award attorney’s fees 9 in a “reasonable” amount, not to exceed twenty-five percent3 of the total past-due 10 benefits awarded to the claimant. See 42 U.S.C. § 406(b)(1)(A); see also Crawford v. 11 Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009). District courts have an affirmative duty to 12 ensure that the attorney’s fees sought are “reasonable.” Id. at 1149. The United States 13 Supreme Court has explained: 14 [Section] 406(b) does not displace contingent-fee agreements as the primary means by which fees are set for successfully representing Social 15 Security benefits claimants in court. Rather, [Section] 406(b) calls for court 16 review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases. Congress has provided one 17 boundary line: Agreements are unenforceable to the extent that they 18 provide for fees exceeding [twenty-five] percent of the past-due benefits . . . Within the [twenty-five] percent boundary . . . the attorney for the 19 successful claimant must show that the fee sought is reasonable for the 20 services rendered.

21 Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002) (emphasis added). When evaluating the 22 reasonableness of attorney’s fees under Section 406(b), the court should consider the 23 24 25 3 The Court notes that the twenty-five percent cap set forth in Section 406(b) applies only to fees for 26 representation before a federal court and not to aggregate fees awarded for representation before both a federal court and the SSA. See Culbertson v. Berryhill, 586 U.S. 53, 59 (2019); see also Ricardo 27 A. v. Saul, No. 3:19-cv-00846-AHG, 2021 U.S. Dist. LEXIS 34644, at *7 n.3 (S.D. Cal. Feb. 24, 2021) 2 at 1151. 3 After reviewing the contingent-fee agreement, the court should consider 4 reductions based on the following factors: (1) whether the attorney’s performance was 5 substandard, (2) whether the attorney engaged in dilatory conduct, and (3) whether the 6 requested fees are excessively large in relation to the benefits achieved, i.e., whether 7 the attorney would receive a “windfall.” Crawford, 586 F.3d at 1150–52. With respect 8 to the third factor, the Ninth Circuit has noted that attorneys assume significant risk in 9 accepting Social Security cases, including the risk that no benefits will be awarded or 10 that there will be a long court or administrative delay in resolving the case. Id. at 1152. 11 In Social Security cases, attorney’s fees are paid by the claimant out of the past- 12 due benefits awarded; the losing party is not responsible for payment. Id. at 1147 13 (citing Gisbrecht, 535 U.S. at 802). Attorneys in such cases are permitted to seek 14 recovery under both the EAJA and Section 406(b), but the attorney must refund the 15 amount of the smaller fee to the claimant. See Gisbrecht, 535 U.S. at 796; see also 16 Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1218 (9th Cir. 2012). 17 III. DISCUSSION 18 The contingency-fee agreement between Plaintiff and Petitioner provides that 19 Petitioner is to receive twenty-five percent of Plaintiff’s past-due benefits upon a 20 successful federal appeal. (See ECF No. 22-2 at 1–2.) On remand, the Commissioner 21 awarded Plaintiff $119,389.00 in total past-due benefits. (See ECF No. 22 at 4; see also 22 ECF No. 22-1.) Petitioner seeks attorney’s fees in the amount of $29,847.25. (ECF No. 23 22 at 4.) This figure represents twenty-five percent of the total past-due benefits 24 awarded to Plaintiff. (Id.) Accordingly, the attorney’s fees sought are within the twenty- 25 five percent statutory ceiling. See 42 U.S.C. § 406(b)(1)(A). Therefore, the Court will 26 consider the character of the representation and the results achieved to determine 27 / / 2 F.3d at 1151. 3 As to the first and second factors, the Court finds that no reduction of fees due to 4 substandard performance or dilatory conduct is warranted. See Crawford, 586 F.3d at 5 1151. Petitioner spent a total of 46.8 hours on Plaintiff’s case and filed persuasive 6 opening and reply briefs, as well as a pre-briefing settlement proposal. (ECF No. 22 at 7 4.) Petitioner’s efforts ultimately resulted in a favorable decision for Plaintiff on 8 remand, including an award of past-due benefits. (Id.) Petitioner notes that she has 9 been practicing law for twenty-one years, she is a member of two state bar associations, 10 she was the sole attorney representing Plaintiff before this Court, and she did not delay 11 the case. (Id.) Petitioner also attached a detailed billing statement which indicates that 12 she expeditiously reviewed the case, conducted legal research, and achieved positive 13 results within a reasonable time frame. (See ECF No. 22-4.) Thus, there is no evidence 14 of substandard performance or dilatory conduct. 15 As to the third factor, the Court finds that the attorney’s fees sought are not 16 excessively large in relation to the benefits achieved. See Crawford, 586 F.3d at 1151– 17 1152. Petitioner spent a total of 46.8 hours on this case at a rate of approximately 18 $637.00 per hour. (ECF No. 22-4.) Petitioner’s rate is well within the range that this 19 Court has found to be appropriate. See, e.g., Roland S. v. Kijakazi, No. 20-cv-01068-AHG, 20 2023 U.S. Dist. LEXIS 189176, at *9 (S.D. Cal. Oct. 20, 2023) (finding an effective hourly 21 rate of $1,438.35 reasonable); Watkins v. O’Malley, No. 21-cv-101-BLM, 2024 U.S. Dist. 22 LEXIS 93524, at *6 (S.D. Cal. May 24, 2024) (finding an effective hourly rate of $1,566.00 23 reasonable); Reddick v. Berryhill, No. 16-cv-29-BTM-BLM, 2019 U.S. Dist. LEXIS 91736, at 24 *5 (S.D. Cal. May 30, 2019) (finding an effective hourly rate of $1,990.00 reasonable on 25 reconsideration). Therefore, there is nothing in the record to suggest Petitioner delayed 26 this litigation to amass more in potential fees or otherwise offered substandard 27 performance. 1 In further support of its finding, the Court acknowledges that Petitioner assumed 2 ||a substantial risk of non-payment by agreeing to be paid on a contingency basis. 3 || “[C]ourts recognize that basing a reasonableness determination on a simple hourly rate 4 || basis is inappropriate when an attorney is working pursuant to a reasonable 5 || contingency contract for which there runs a substantial risk of loss... .” Ayersman v. 6 || Berryhill, No. 17-cv-1121-WQH-JMA, 2021 U.S. Dist. LEXIS 1253, at *6 (S.D. Cal. Jan. 4, 7 || 2021) (citations omitted); Moreno v. Berryhill, No. CV 13-8492-PLA, 2018 U.S. Dist. LEXIS 8 121060, at *10 (C.D. Cal. July 19, 2018) (noting that “[c]ounsel assumed the risk of 9 || nonpayment inherent in a contingency agreement”). Here, Petitioner assumed a 10 || substantial risk of non-payment by agreeing to be paid on a contingency basis, and 11 || Petitioner’s work ultimately resulted in a highly favorable result for Plaintiff, who raises 12 ||no opposition. (See generally Dkt.) The Court thus concludes that Petitioner’s request 13 || for attorney’s fees in the amount of $29,847.25 is reasonable. 14 Critically, while attorneys are permitted to seek fees under both the EAJA and 15 || Section 406(b), they must refund the smaller fee to the claimant. Gisbrecht, 535 U.S. at 16 Accordingly, Petitioner must refund to Plaintiff the $9,000.00 in fees previously 17 || awarded by this Court under the EAJA. (See ECF No. 21.) 18 IV. CONCLUSION 19 For the foregoing reasons, the Court GRANTS the Motion and AWARDS attorney’s 20 || fees to Petitioner in the amount of $29,847.25. The Court ORDERS Petitioner to 21 ||reimburse Plaintiff in the amount of $9,000 for the fees previously awarded by this 22 || Court under the EAJA. (See id.) 23 IT IS SO ORDERED. 24 Dated: January 26, 2026 = _ 2 FF Honorable Michael S. Berg United States Magistrate Judge 27 28