Opinion

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 SOUTHERN DISTRICT OF CALIFORNIA 8 Case No.: 23-cv-01253-DMS-LR 9 GERARDO S., 10 O R D E R G R A N T I N G Plaintiff,1 PLAINTIFF’S MOTION 11 v. FOR ATTORNEY FEES 12 FRANK BISIGNANO, 13 COMMISSIONER OF SOCIAL SECURITY, 14 15 Defendant.2 16 17 Pending before the Court is a Motion for Attorney Fees Under 42 U.S.C. § 406(b) 18 filed by Plaintiff’s counsel (“Motion”). (Mot., ECF No. 13). Defendant filed a response 19 “neither support[ing] nor oppos[ing] Counsel’s request for attorney’s fees in the amount of 20 $28,002.75.” (Resp., ECF No. 14 at 2). For the following reasons, the Motion is granted. 21 I. BACKGROUND 22 On July 6, 2023, Plaintiff filed this action against the Acting Commissioner of Social 23 Security, seeking review of the denial of his application for disability insurance benefits. 24 (ECF No. 1 at 1). On January 5, 2024, the Parties filed a Joint Motion to Remand to the 25 26 1 Pursuant to Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security cases under 42 27 U.S.C. § 405(g)] will refer to any non-government parties by using only their first name and last initial.” 2 Pursuant to Federal Rule of Civil Procedure 25(d), Commissioner Frank Bisignano is automatically 28 1 Social Security Administration. (ECF No. 11). On January 17, 2024, the Court granted 2 the motion, remanding the case to the Commissioner of Social Security for further 3 administrative proceedings. (ECF No. 12); see 42 U.S.C. § 405(g). On remand, the 4 Administrative Law Judge found Plaintiff to have been disabled since February 20, 2019. 5 (Mot. 3). On January 29, 2026, Plaintiff received a Notice of Award reflecting past-due 6 benefits of $112,011.00. (Mot. Ex. A, ECF No. 13-1 at 1, 4). Pursuant to the agency’s 7 regular practice, it withheld $28,002.75, which is twenty-five percent of Plaintiff’s past- 8 due benefits. (Id. at 5). Of that amount, the agency allocated $9,200.00 toward potential 9 fees for representation before the agency, leaving $18,802.75 “in case your lawyer asks the 10 Federal Court to approve a fee for work that was done before the court.” (Mot. Ex. A 4– 11 5); see § 406(a)(2)(A) (authorizing a fee which is the lesser of twenty-five percent of the 12 past-due benefits or a maximum amount); Maximum Dollar Limit in the Fee Agreement 13 Process, 89 Fed. Reg. 40523 (May 10, 2024) (setting $9,200 as the representative fee cap). 14 On January 29, 2026, Plaintiff’s counsel filed the present Motion seeking $28,002.75 in 15 attorney fees under § 406(b) for representing Plaintiff in this action. (Mot. 1). On February 16 11, 2026, Defendant filed a response neither supporting nor opposing the Motion. 17 (Resp. 2). Plaintiff was served with the Motion but has not filed any objection or response. 18 (Mot. 8). Counsel has neither sought nor received fees under the Equal Access to Justice 19 Act. See 28 U.S.C. § 2412(d); Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 20 1219 (9th Cir. 2012) (noting the EAJA savings provision requires a refund to the claimant 21 when an attorney receives a fee award under § 2412(d) and § 406(b) for the same work). 22 II. LEGAL STANDARD 23 When “a court renders a judgment favorable to a claimant . . . who was represented 24 before the court by an attorney, the court may determine and allow . . . a reasonable fee for 25 such representation, not in excess of 25 percent of the total of the past-due benefits.” 26 § 406(b)(1)(A). “Any such award is paid directly out of the claimant’s benefits.” Parrish, 27 698 F.3d at 1217. “Where an attorney represents a claimant pursuant to a contingency fee 28 agreement, that agreement is the starting point for the district court’s reasonableness 1 determination.” Robles v. Saul, 831 F. App’x 272, 273 (9th Cir. 2020) (citing Gisbrecht v. 2 Barnhart, 535 U.S. 789, 808 (2002)). “The attorney bears the burden of establishing that 3 the fee sought is reasonable,” whereas the Commissioner of Social Security, with “no direct 4 financial stake in the answer to the § 406(b) question[,] . . . plays a part in the fee 5 determination resembling that of a trustee for the claimants.” Crawford v. Astrue, 586 F.3d 6 1142, 1148 (9th Cir. 2009); Gisbrecht, 535 U.S. at 798 n.6. Furthermore, the court “has 7 an affirmative duty to assure that the reasonableness of the fee is established.” Crawford, 8 586 F.3d at 1149. In evaluating reasonableness, the court “first look[s] to the fee agreement 9 and then adjust[s] downward if the attorney provided substandard representation or delayed 10 the case, or if the requested fee would result in a windfall,” such as when the “benefits [] 11 are not in proportion to the time spent on the case.” Id. at 1151. “As evidence of the 12 reasonableness of the resulting fee, the court may require counsel to submit a record of 13 hours spent and a statement of normal hourly billing charges . . . . but only as an aid in 14 assessing the reasonableness of the fee.” Id. 15 III. DISCUSSION 16 The Court begins with the relevant contingency fee agreement. Plaintiff signed the 17 agreement on July 6, 2023, acknowledging that the “attorney has the right under this 18 contract to ask the court to award as much as 25% of my past-due benefits for representing 19 me in court.” (Mot. Ex. B, ECF No. 13-2 at 1–2). This percentage is at the statutory cap, 20 which is now “the most common fee arrangement between attorneys and Social Security 21 claimants.” Crawford, 586 F.3d at 1147 (citation modified); see § 406(b)(1)(A). 22 Nevertheless, the Court must do an “independent check to determine whether the requested 23 fee is reasonable.” Robles, 831 F. App’x at 273 (citation modified). Here, there is no 24 evidence of substandard representation. Counsel reviewed the administrative record, 25 identified errors in the evaluation of Plaintiff’s impairments, and secured a voluntary 26 remand culminating in a favorable decision. (Mot. 5). There is also no evidence that 27 counsel engaged in dilatory conduct to cause “an undue accumulation of past-due benefits.” 28 1 || Crawford, 586 F.3d at 1151. An award of $28,002.75 would also not be a □□□□□□□□□ 2 Counsel spent twenty-two and a half hours on this action, yielding an effective hourly rate 3 approximately $1,244.57. (Mot. 4). This rate, although “on the higher end, [] is within 4 ||the range of hourly rates approved by other courts in the Ninth Circuit.” Oscar J. v. 5 || Bisignano, No. 20-cv-1432-AJB-BLM, 2025 WL 2431796, at *2 (S.D. Cal. Aug. 22, 2025) 6 (referencing an effective rate of $1,224.37) (collecting cases). Furthermore, this effective 7 ||rate is similar to counsel’s hourly rate of $1,141.00 in non-contingency cases. (Mot. 5); cf 8 re CWS Enters., Inc., 870 F.3d 1106, 1116 (9th Cir. 2017) (“Contingent fee agreements 9 || provide reasonable alternatives to the hourly retainer, despite the fact that, as a result of 10 contingent and therefore risky nature, such agreements typically generate fees 11 |/substantially in excess of lodestar calculations when the lawyer succeeds.” (citation 12 ||modified)). For these reasons, the Court finds the fee request to be reasonable. (See 13 ||Resp. 3 (“The Commissioner has given substantive consideration to the merits of the 14 || Motion for § 406(b) fees and found no basis to object.’’)). 15 IV. CONCLUSION AND ORDER 16 For the reasons set out in this order, the Court GRANTS the Motion and AWARDS 17 || Plaintiff’s counsel $28,002.75 in attorney fees pursuant to § 406(b)(1)(A). 18 IT IS SO ORDERED. 19 || Dated: June 30, 2026 20 2 inn ym. 4 /\ 21 Hon. Dana M. Sabraw United States District Judge 23 || —————________ 24 The Court notes that the twenty-five percent cap in § 406(b)(1)(A) “applies only to fees for court 25 || representation, and not to the aggregate fees awarded under §§ 406(a) and (b).” Culbertson v. Berryhill, 586 U.S. 53, 62 (2019). Thus, the allocation of $9,200.00 for representation before the agency does not 26 || change the Court’s conclusion. See Bennett v. Bisignano, No. 22-35901, 2026 WL 686549, at *1 (9th Cir. Mar. 11, 2026) (reversing the denial of § 406(b) fees where “the Commissioner failed to withhold an 27 adequate amount of funds”) (unpublished); see also (Mot. Ex. B at 2 (“This contract is in addition to any 28 other fee agreement I have signed or will sign with my attorney for representation before the Social Security Administration.”)).