Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL H., Case No.: 22-cv-0977-MSB 12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. ATTORNEY’S FEES PURSUANT TO 42 U.S.C. § 406(b) [ECF NO. 27] 14 FRANK BISIGNANO, Commissioner of Social Security Administration, 15 Defendant. 16 17 On June 16, 2026, Martha Yancey (“Petitioner”), counsel for Plaintiff Michael H. 18 (“Plaintiff”), filed a Motion for Attorney’s Fees Pursuant to 42 U.S.C. § 406(b), requesting 19 that the Court award attorney’s fees in the amount of $37,393.00. ECF No. 27 20 (“Motion”). For the reasons set forth below, the Court GRANTS the Motion. 21 I. BACKGROUND 22 On July 1, 2022, Plaintiff initiated the instant civil action against the Commissioner 23 of Social Security (“the Commissioner”), pursuant to 42 U.S.C. § 405(g), seeking judicial 24 review of the Commissioner’s decision to deny Plaintiff’s application for disability 25 insurance benefits. ECF No. 1. On November 17, 2023, the Commissioner filed the 26 Administrative Record. ECF No. 12. On May 03, 2024, the parties filed a Joint Motion 27 for Judicial Review, in which Plaintiff asked the Court to reverse the Commissioner’s 2 Administration (“SSA”) for further administrative proceedings pursuant to 42 U.S.C. § 3 405(g). ECF No. 19. On September 23, 2024, the Court reversed the Commissioner’s 4 decision and remanded the action to the SSA for further administrative proceedings. 5 ECF No. 23. 6 On December 13, 2024, the parties filed a Joint Motion for the Award of 7 Attorney’s Fees Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). 8 ECF No. 25. That same day, the Court granted the Joint Motion and awarded attorney’s 9 fees in the amount of $8,500.00 under the EAJA, 28 U.S.C. § 2412(d), and costs for 10 $402.00 under 28 U.S.C. § 1920. ECF No. 26. 11 On June 16, 2026, Petitioner filed the instant Motion, seeking attorney’s fees in 12 the amount of $37,393.00, pursuant to 42 U.S.C. § 406(b) (“Section 406(b)”). ECF No. 13 27. In support of the Motion, Petitioner explains that Plaintiff prevailed on remand to 14 the SSA. Id. at 3. The SSA sent a letter stating that it was withholding $37,393.00, 15 representing the balance of 25% of Plaintiff’s past-due benefits, in anticipation of direct 16 payment of an authorized attorney’s fees. Id. Petitioner contends that an award of 17 $37,393.00 is reasonable given Petitioner “had not requested any fee beyond the 18 amount withheld by the Social Security Administration for potential payment of an 19 authorized fee for counsel’s federal-court work.” Id. at 4. Petitioner acknowledges 20 Plaintiff is owed a credit for the fees that were previously awarded by this Court under 21 the EAJA; however, Petitioner incorrectly reports “Plaintiff received $9,000.00,” 22 whereas Plaintiff was actually awarded $8,500.00. Cf. id. at 5; ECF No. 26. 23 On June 17, 2026, the Court issued a briefing schedule in which the Court notified 24 Plaintiff of her right to oppose the Motion and ordered any such opposition or response 25 be filed by July 17, 2026. ECF No. 28 at 2. Plaintiff did not respond. On July 17, 2026, 26 the Commissioner responded that “the Commissioner neither supports nor opposes 27 [Petitioner]’s request for attorney’s fees under 42 U.S.C. § 406(b)” but requested the 2 Plaintiff. ECF No. 29 at 3. 3 II. LEGAL STANDARD 4 Under the Social Security Act, a court that has rendered a judgment in favor of a 5 Social Security claimant who was represented by an attorney may award attorney’s fees 6 in a “reasonable” amount, not to exceed twenty-five percent1 of the total past-due 7 benefits awarded to the claimant. 42 U.S.C. § 406(b)(1)(A); Crawford v. Astrue, 586 F.3d 8 1142, 1147 (9th Cir. 2009). District courts have an affirmative duty to ensure that the 9 attorney’s fees sought are “reasonable.” Id. at 1149. The United States Supreme Court 10 has explained: 11 [Section] 406(b) does not displace contingent-fee agreements as the primary means by which fees are set for successfully representing Social 12 Security benefits claimants in court. Rather, [Section] 406(b) calls for court 13 review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases. Congress has provided one 14 boundary line: Agreements are unenforceable to the extent that they 15 provide for fees exceeding [twenty-five] percent of the past-due benefits . . . Within the [twenty-five] percent boundary . . . the attorney for the 16 successful claimant must show that the fee sought is reasonable for the 17 services rendered.

18 Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002) (emphasis added). When evaluating the 19 reasonableness of attorney’s fees under Section 406(b), the court should consider the 20 character of the representation and the results achieved. Id. at 808; Crawford, 586 F.3d 21 at 1151. 22 23 24 25 1 The Court notes that the twenty-five percent cap set forth in Section 406(b) applies only to fees for representation before a federal court and not to aggregate fees awarded for representation before 26 both a federal court and the SSA. Culbertson v. Berryhill, 586 U.S. 53, 59 (2019); see also Ricardo A. v. 27 Saul, No. 3:19-cv-00846-AHG, 2021 U.S. Dist. LEXIS 34644, at *7 n.3 (S.D. Cal. Feb. 24, 2021) (“[T]he 2 reductions based on the following factors: (1) whether the attorney’s performance was 3 substandard, (2) whether the attorney engaged in dilatory conduct, and (3) whether the 4 requested fees are excessively large in relation to the benefits achieved, i.e., whether 5 the attorney would receive a “windfall.” Crawford, 586 F.3d at 1150–52. With respect 6 to the third factor, the Ninth Circuit has noted that attorneys assume significant risk in 7 accepting Social Security cases, including the risk that no benefits will be awarded or 8 that there will be a long court or administrative delay in resolving the case. Id. at 1152. 9 In Social Security cases, attorney’s fees are paid by the claimant out of the past- 10 due benefits awarded; the losing party is not responsible for payment. Id. at 1147 11 (citing Gisbrecht, 535 U.S. at 802). Attorneys in such cases are permitted to seek 12 recovery under both the EAJA and Section 406(b), but the attorney must refund the 13 amount of the smaller fee to the claimant. Gisbrecht, 535 U.S. at 796; Parrish v. Comm’r 14 of Soc. Sec. Admin., 698 F.3d 1215, 1218 (9th Cir. 2012). 15 III. DISCUSSION 16 The contingency-fee agreement between Plaintiff and Petitioner provides that 17 Petitioner is to receive twenty-five percent of Plaintiff’s past-due benefits upon a 18 successful federal appeal. ECF No. 27 at 1-2. On remand, the Commissioner awarded 19 Plaintiff benefits. ECF No. 27 at 3. Thereafter, Social Security Administration sent a letter 20 stating that it was withholding $37,393.00, representing the balance of 25% of Plaintiff’s 21 past-due benefits, in anticipation of direct payment of an authorized attorney’s fee. Id.; 22 ECF No. 27-1. Petitioner seeks attorney’s fees in the amount of $37,393.00. ECF No. 27 23 at 3-4. Accordingly, the attorney’s fees sought are within the twenty-five percent 24 statutory ceiling. See 42 U.S.C. § 406(b)(1)(A). Therefore, the Court will consider the 25 character of the representation and the results achieved to determine whether the fee 26 is reasonable. See Gisbrecht, 535 U.S. at 808; see also Crawford, 586 F.3d at 1151. 27 2 substandard performance or dilatory conduct is warranted. See Crawford, 586 F.3d at 3 1151. Petitioner attached a detailed billing statement to support her claim that she 4 spent 39.4 hours on Plaintiff’s case. ECF No. 27-4. She thoroughly reviewed the 5 Administrative Record, conducted legal research, conferred with Plaintiff, drafted a 6 settlement proposal for the Commissioner, and a compelling brief that achieved positive 7 results within a reasonable time frame. ECF Nos. 27 at 4-5; 27-4. Petitioner’s efforts 8 ultimately resulted in a favorable decision for Plaintiff on remand, including an award of 9 substantial past-due benefits. ECF No. 27 at 5. Petitioner notes that she has been 10 practicing law for twenty-two years, she is a member of two state bar associations, she 11 was the sole attorney representing Plaintiff before this Court, and she did not delay the 12 case. Id. Petitioner also attached a detailed billing statement which indicates that she 13 expeditiously reviewed the case, conducted legal research, and achieved positive results 14 within a reasonable time frame. ECF No. 27-4. Thus, there is no evidence of 15 substandard performance or dilatory conduct. 16 As to the third factor, the Court finds that the attorney’s fees sought are not 17 excessively large in relation to the benefits achieved. See Crawford, 586 F.3d at 1151– 18 1152. Petitioner spent 39.4 hours on this case at a rate of approximately $949.06 per 19 hour. ECF No. 27 at 4; ECF No. 27-4. Petitioner’s rate is well within the range that this 20 Court has found to be appropriate. See, e.g., Roland S. v. Kijakazi, No. 20-cv-01068-AHG, 21 2023 U.S. Dist. LEXIS 189176, at *9 (S.D. Cal. Oct. 20, 2023) (finding an effective hourly 22 rate of $1,438.35 reasonable); Watkins v. O’Malley, No. 21-cv-101-BLM, 2024 U.S. Dist. 23 LEXIS 93524, at *6 (S.D. Cal. May 24, 2024) (finding an effective hourly rate of $1,566.00 24 reasonable); Reddick v. Berryhill, No. 16-cv-29-BTM-BLM, 2019 U.S. Dist. LEXIS 91736, at 25 *5 (S.D. Cal. May 30, 2019) (finding an effective hourly rate of $1,990.00 reasonable on 26 reconsideration). Therefore, there is nothing in the record to suggest Petitioner delayed 27 1 || this litigation to amass more in potential fees or otherwise offered substandard 2 || performance. 3 In further support of its finding, the Court acknowledges that Petitioner assumed 4 ||a substantial risk of non-payment by agreeing to be paid on a contingency basis. 5 || “[C]ourts recognize that basing a reasonableness determination on a simple hourly rate 6 || basis is inappropriate when an attorney is working pursuant to a reasonable 7 || contingency contract for which there runs a substantial risk of loss... .” Ayersman v. 8 || Berryhill, No. 17-cv-1121-WQH-JMA, 2021 U.S. Dist. LEXIS 1253, at *6 (S.D. Cal. Jan. 4, 9 || 2021) (citations omitted); Moreno v. Berryhill, No. CV 13-8492-PLA, 2018 U.S. Dist. LEXIS 10 121060, at *10 (C.D. Cal. July 19, 2018) (noting that “[c]lounsel assumed the risk of 11 |] nonpayment inherent in a contingency agreement”). Here, Petitioner assumed a 12 || substantial risk of non-payment by agreeing to be paid on a contingency basis, and 13 || Petitioner’s work ultimately resulted in a highly favorable result for Plaintiff, who raises 14 ||no opposition. See generally Dkt. The Court thus concludes that Petitioner’s request for 15 || attorney’s fees in the amount of $37,393.00 is reasonable. 16 Critically, while attorneys are permitted to seek fees under both the EAJA and 17 || Section 406(b), they must refund the smaller fee to the claimant. Gisbrecht, 535 U.S. at 18 || 796. Accordingly, Petitioner must refund to Plaintiff the $8,500.00 in fees previously 19 || awarded by this Court under the EAJA. See ECF No. 25. 20 IV. CONCLUSION 21 For the foregoing reasons, the Court GRANTS the Motion, AWARDS attorney’s 22 || fees to Petitioner in the amount of $37,393.00, and ORDERS Petitioner to reimburse 23 || Plaintiff in the amount of $8,500.00 for the fees previously awarded by this Court under 24 ||the EAJA. See id. 25 IT IS SO ORDERED. ~ :

26 || Dated: September 18, 2026 37 onorable Michael S. Ber United States Magistrate Judge 28