Marisol Villalobos Mercado v. Commissioner of Social Security Administration

1 WO 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Marisol Villalobos Mercado, No. CV-20-00423-PHX-DJH 10 Plaintiff, ORDER v. Commissioner of Social Security Administration, Defendant.

15 Plaintiff Marisol Villalobos Mercado (“Plaintiff”) filed a Motion for an Award of Attorney Fees under 42 U.S.C. § 406(b) (Doc. 33), seeking an award of $23,386.50.

17 Plaintiff’s Motion was backed by her Memorandum in Support. (See Doc. 34). The Social Security Administration (“SSA”) Commissioner (the “Commissioner”) filed a Response (Doc. 36) neither supporting nor opposing the award sought.

20 I. Background 21 Plaintiff filed Applications for Disability Insurance benefits and Supplemental Security Income benefits on May 12, 2016, for a period of disability beginning on May 7, 2014. (R. at 19). Her claim was denied initially on August 5, 2016, and was then denied on reconsideration in December of 2016. (Id.) Following a subsequent hearing, the ALJ denied Plaintiff’s claims on January 25, 2019. (Id. at 19, 30). The Appeals Council denied Plaintiff’s review request and adopted the ALJ’s decision as its final decision, prompting Plaintiff to seek judicial review. (Id. at 1–3). On April 29, 2021, the Court reversed the ALJ’s decision and remanded the case for further proceedings. (See Doc. 24). Despite Defendant’s opposition (see Doc. 29), the Court also issued Plaintiff an award of $10,558.29 in attorney fees under the Equal Access to Justice Act (“EAJA”). (Doc. 31).

3 On remand, Plaintiff recovered past-due benefits in the amount of $93,546.00.

4 (Doc. 34-1 at 6). A portion of these benefits were withheld in case Plaintiff’s counsel required payment. (Id.) Plaintiff’s counsel now seeks $23,386.50 in attorney fees.

6 II. Legal Standard 7 Section 4061 establishes “the exclusive regime for obtaining fees for successful representation of Social Security benefits claimants.” Gisbrecht v. Barnhart, 535 U.S. 789, 795–96 (2002). Section 406(b) provides that “[w]henever a court renders a judgment favorable to a claimant . . . who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment . . . .” 42 U.S.C. § 406(b)(1)(A). Fees are payable out of, and not in addition to, the amount of the past-due benefits. Id. Before awarding fees, the Court must consider whether the 42 U.S.C. § 406(b) fee requested is (1) within the statutory guidelines; (2) consistent with the fee agreement; and (3) reasonable in light of the contingent-fee agreement. Gisbrecht, 535 U.S. at 807–08.

18 III. Discussion 19 Plaintiff’s counsel is seeking $23,386.50 in § 496(b) fees. (Doc. 34 at 1). Upon review of the Itemization of Services (Doc. 34-3), the time expended and the amounts charged by Plaintiff’s counsel are reasonable in this case. First, the fees sought adhere to § 406(b)’s guidelines. Plaintiff was awarded $93,546.00 in back past-due benefits, and the requested $23,386.50 in attorney fees equals 25% of the award. Second, this amount is consistent with the fee agreement which clearly states that Plaintiff’s attorney would be entitled to 25% of past-due benefits. (Doc. 34-2 at 2). Lastly, the requested fee is reasonable given the contingent-fee agreement because it reflects the nature of the recovery. (Doc. 34 at 5). Plaintiff’s case had a substantial risk of loss because Plaintiff Unless where otherwise noted, all Section references are to the Social Security Act.

1 || had been repeatedly denied on agency review before the initiating this civil action. (/d.).

2|| In sum, the Court finds that the amount requested is reasonable under Gisbrecht and will award Plaintiff $23,386.50 in § 406(b) fees.

4 Under the present circumstances, however, an offset is necessary. The Court || granted Plaintiff's Motion for Attorney Fees under the EAJA and awarded fees in the 6|| amount of $10,558.29. (Docs. 26, 31 ($819.28 was deducted from the original amount 7\| requested by Plaintiff based on Defendant’s Response.)). When an attorney receives an || award under § 406(b) and the EAJA, the attorney must refund to the client the smaller of 9|| the awards. See Parrish vy. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1221 (9th Cir. || 2012) (holding “[w]here the same attorney represented a claimant at each stage of judicial || review, the court need merely offset all EAJA awards against the § 406(b) award”). Given the $23,386.50 award of § 406(b) fees to Plaintiff's counsel, the fees awarded under the || EAJA here shall be refunded to Plaintiff.

14 Accordingly, 15 IT IS HEREBY ORDERED that Plaintiff's Motion for Attorney Fees (Doc. 33) is granted under 42 U.S.C. § 406(b). Plaintiff's counsel Mark Caldwell is awarded $23,386.50 in attorney fees to be paid out of the sum from Plaintiffs past-due benefits.

18 || Payment is deliverable to counsel’s office: Mark Caldwell, PC, 8205 S. Priest Dr., PO Box 19|| 10446, Tempe, AZ 85284.

20 IT IS FURTHER ORDERED that Plaintiff's counsel shall refund to Plaintiff the lesser of the fees awarded under 42 U.S.C. § 406(b) and the Equal Access to Justice Act.

22 Dated this 7th day of November, 2025.

24 Ye □□ 25 norable’ Diang/4. Humetewa 26 United States District Judge -3-