Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 SHANE H., Case No.: 19-cv-1435-RSH-KSC 12 Plaintiff, ORDER GRANTING MOTION 13 v. FOR ATTORNEYS’ FEES UNDER 42 U.S.C. § 406(b) 14 FRANK BISIGNANO, Commissioner of Social Security, 15 [ECF No. 32] Defendant. 16 17 18 19 Pending before the Court is a motion for attorneys’ fees pursuant to 42 U.S.C. § 20 406(b), filed by Plaintiff’s counsel. ECF No. 32. As set forth below, the Court grants the 21 motion. 22 I. BACKGROUND 23 On July 30, 2019, Plaintiff filed this action seeking judicial review of the 24 Commissioner’s denial of his application for disability insurance benefits. ECF No. 1. After 25 Plaintiff’s filing of his merits brief, the Parties jointly stipulated to a remand pursuant to 26 sentence four of 42 U.S.C. § 405(g). ECF No. 18. On April 28, 2020, the Court granted the 27 joint motion and remanded the case. ECF No. 19. Thereafter, on further joint motion of the 28 Parties, the Court entered an award of attorneys’ fees pursuant to the Equal Access to 1 Justice Act (“EAJA”), 28 U.S.C. § 2412(d), in the amount of $7,532.67. ECF No. 23. 2 On remand, the proceedings resulted in a further decision to Plaintiff, for which 3 Plaintiff sought judicial review by filing a new federal lawsuit on January 25, 2023, Husted 4 v. Kijakazi, No. 23-cv-141-WQH-JLB (S.D. Cal.). In that case, the Parties ultimately filed 5 another joint motion to remand, which the Court granted on May 18, 2023. 23cv141, ECF 6 Nos. 13; 14. On August 8, 2023, the Court awarded additional attorneys’ fees in the new 7 lawsuit under the EAJA in the amount of $3,107.58. 23cv141, ECF No. 17. 8 On remand for a second time, the Commissioner on September 23, 2025 ruled in 9 Plaintiff’s favor and awarded past-due benefits in the amount of $253,232. ECF No. 24-1 10 at 4. The Commissioner withheld 25% of that amount, or $63,308, as potentially payable 11 to Plaintiff’s attorneys. Id. On October 3, 2025, Plaintiff filed his first motion for attorneys’ 12 fees under 42 U.S.C. § 406(b). ECF No. 24. Plaintiff sought an award of fees in the amount 13 withheld, with an offset for the $10,640.25 in EAJA fees previously awarded, for a net 14 payment by the Social Security Administration in the amount of $52,667.75. Id. at 2–3. On 15 November 21, 2025, the Commissioner filed a response, stating that he has no direct 16 financial stake in the outcome of the motion and “neither supports nor opposes” the request. 17 ECF No. 30 at 2. Plaintiff was provided notice of the request for fees made by his attorneys 18 in his name, ECF No. 24 at 5, and has not opposed the request. See Docket. On December 19 22, 2025, the Court granted the motion. ECF No. 31. 20 On January 10, 2026, Plaintiff filed his present motion for attorneys’ fees under 42 21 U.S.C. § 406(b). ECF No. 32. The motion seeks a further award of fees to Plaintiff’s 22 counsel based on the Social Security Administration’s separate award of benefits to 23 Plaintiff’s auxiliary beneficiary.1 Id. at 2. The total amount of past due benefits that SSA 24 25 1 This notice of award is undated, but provides for an award of benefits to Plaintiff’s 26 auxiliary beneficiary for a period ending in December 2025. ECF No. 32-1 at 2. Plaintiff’s 27 counsel represents that SSA did not send counsel a copy of this notice of award, as reflected in the addressee line of notice itself; and that Plaintiff’s counsel first received the notice on 28 1 owed to the auxiliary beneficiary was $88,937; SSA has sent a check to the auxiliary 2 beneficiary for 75% of this amount, and withheld the remaining 25%, of $22,234.25, for 3 possible payment of attorneys’ fees. Id. at 2; ECF No. 32-1 at 2. It is this amount of 4 $22,234.25 that Plaintiff’s counsel seeks to recover in the present motion. As before, the 5 Commissioner takes no position on the motion, and Plaintiff himself has been provided 6 notice and has not opposed. See ECF Nos. 33, 34. 7 II. LEGAL STANDARD 8 Under 42 U.S.C. § 406(b), a court entering judgment in favor of a social security 9 claimant who was represented by an attorney “may determine and allow as part of its 10 judgment a reasonable fee for such representation, not in excess of 25 percent of the total 11 of the past-due benefits to which the claimant is entitled by reason of such judgment ….” 12 42 U.S.C. § 406(b)(1)(A). “Within the 25 percent boundary ... the attorney for the 13 successful claimant must show that the fee sought is reasonable for the services rendered.” 14 Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). “[A] district court charged with 15 determining a reasonable fee award under § 406(b)(1)(A) must respect ‘the primacy of 16 lawful attorney-client fee agreements,’ ‘looking first to the contingent-fee agreement, then 17 testing it for reasonableness.’” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) 18 (en banc) (quoting Gisbrecht, 535 U.S. at 793, 808). The court “first look[s] to the fee 19 agreement and then adjust[s] downward if the attorney provided substandard representation 20 or delayed the case, or if the requested fee would result in a windfall.” Id. at 1151. “The 21 court may properly reduce the fee for substandard performance, delay, or benefits that are 22 not in proportion to the time spent on the case.” Id. 23 An attorney’s fee award under § 406(b) is paid out of the claimant’s successful 24 recovery. Gisbrecht, 535 U.S. at 802. A court may award fees under § 406(b) to an attorney 25 who previously received fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. 26 27 or about January 8, 2026, from administrative counsel. ECF No. 32 at 2; ECF No. 32-1 at 28 1 § 2412. Parrish v. Comm’r of SSA, 698 F.3d 1215, 1218 (9th Cir. 2012). However, in order 2 to “maximize the award of past-due benefits to claimants and to avoid giving double 3 compensation to attorneys,” a lawyer is required to “offset any fees received under § 406(b) 4 with any award that the attorney receives under § 2412 if the two were for the ‘same 5 work.’” Id. (citing Gisbrecht, 535 U.S. at 796). 6 III. ANALYSIS 7 First, the Court determines that the contingent-fee arrangement in this case, ECF No. 8 32-2, which provides that Counsel will receive 25% of past-due benefits awarded after a 9 favorable decision, is within the statutory limit. See 42 U.S.C. § 406(b)(1)(A); Crawford, 10 586 F.3d at 1147.2 Counsel entered into this agreement despite the risk of receiving little 11 or no recovery in the event of an unfavorable outcome. There is no evidence here of “fraud 12 or overreaching” in connection with the negotiation of the agreement. See Astrue, 586 F.3d 13 at 1145. Plaintiff was given the opportunity to oppose the fee motion but did not do so. 14 Second, the Court determines that the requested fees are reasonable. There is no 15 evidence in the record of substandard representation or undue delay caused by counsel. 16 Counsel has provided time records reflecting 49.5 hours spent on Plaintiff’s case at the 17 district court level. ECF No. 32-3 at 3, 6. The requested fees of $22,234.25, combined with 18 the $63,308 in fees previously awarded, amount to a total hourly rate of $1,728. Although 19 this hourly rate is high, the work was performed on a contingent-fee arrangement, and 20 secured favorable awards. See Truett v. Berryhill, No. 13-cv-2742-W (BLM), 2017 WL 21 3783892, at *2 (S.D. Cal. Aug. 31, 2017) (approving a de facto hourly rate of $1,788.62). 22 The Court concludes that the award would not be disproportionate or result in a windfall, 23 and declines to adjust the award downward. 24 // 25 26 27 2 The agreement also confirms Plaintiff’s “understanding that Title II past due benefits are the total amount to which I (and any auxiliary beneficiaries) become entitled[.]” ECF 28 1 |}IV. CONCLUSION 2 For the foregoing reasons, the motion for fees [ECF No. 24] with respect to the award 3 Plaintiffs auxiliary beneficiary is GRANTED. Plaintiff's counsel is awarded 4 || $22,234.25. The Commissioner is directed to remit the payment of directly to counsel at 5 || the following address: Chermol & Fishman LLC, 11450 Bustleton Ave., Philadelphia, PA 6 ||19116. Because SSA’s payment centers require the name of a single attorney, such 7 payment shall be directed to attorney David F. Chermol. 8 IT IS SO ORDERED. 9 || Dated: February 3, 2026 ‘ 10 ekut ¢ Howe 1 Hon. Robert S. Huie United States District Judge 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28