1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARY JEAN R., Case No.: 22cv485-GPC(DEB)

12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. APPROVAL OF ATTORNEY’S FEES UNDER

(b) 14 MARTIN O’MALLEY, Commissioner of

Social Security, 15 [Dkt. No. 23.] Defendant. 16

17 Before the Court is a motion for approval of attorney’s fees in favor of Plaintiff’s 18 counsel, Troy D. Monge, Esq., in the amount of $14,860.46 pursuant to

406(b). (Dkt. No. 23.) Defendant Martin O’Malley, Commissioner of Social Security, 20 (“Defendant”) filed a response declining to take a position on the motion. (Dkt. No. 25.) 21 Plaintiff’s counsel filed a reply which included a declaration from Plaintiff in support of 22 and approving the request for attorney fees. (Dkt. No. 26-1 at 1.) For the reasons set 23 forth below, the Court GRANTS the motion. 24 Background 25 On April 8, 2022, Plaintiff filed a complaint seeking review of the Commissioner 26 of Social Security’s decision to deny her supplemental security income. (Dkt. No. 1.) 27 After Plaintiff filed a motion for summary judgment, on October 6, 2022, the parties filed 28 1 a joint motion to remand the matter for further administrative proceedings pursuant to 2 sentence four of

(g), which the Court granted. (Dkt. Nos. 17, 18.) On 3 November 14, 2022, the Court awarded attorney’s fees to Plaintiff’s counsel under the 4 Equal Access to Justice Act (“EAJA”) in the amount of $3,608.63 pursuant to the parties’ 5 joint motion. (Dkt. Nos. 19, 20.) 6 On remand and consideration of Plaintiff’s claim, around May 16, 2024, Plaintiff 7 was awarded monthly Supplemental Security Income in the amount of $1,182.94 starting 8 June 2024 and $59,441.96 in past-due benefits. (Dkt. No. 23-2.) 9 On July 17, 2024, Plaintiff’s counsel filed the instant motion pursuant to 42 U.S.C. 10 § 406(b) seeking $14,860.46 in attorney’s fees representing 25% of the past-due benefits. 11 (Dkt. No. 23.) Defendant filed a response taking no position in the amount that is sought 12 by Plaintiff’s counsel. (Dkt. No. 25.) Plaintiff’s counsel filed a reply and attached a 13 declaration from Plaintiff approving the amount sought in the attorney’s fees. (Dkt. No. 14 26.) 15 Discussion 16 A. Legal Standard 17

(b) permits the Court, upon “entering judgment in favor of [a 18 social security disability] claimant who was represented by an attorney,” to “determine 19 and allow as part of its judgment a reasonable fee for such representation” up to “25 20 percent of the total of the past-due benefits to which the claimant is entitled by reason of 21 such judgment.” Crawford v. Astrue,

(9th Cir. 2009) (en banc) 22 (quoting

(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney 23 for the successful claimant must show that the fee sought is reasonable for the services 24 rendered.” Gisbrecht v. Barnhart,

(2002). The fee is payable out of 25 the plaintiff’s past-due benefits, not in addition to them.

(b)(1)(A). 26 “[Section] 406(b) does not displace contingent fee agreements within the statutory 27 ceiling; instead, § 406(b) instructs courts to review for reasonableness fees yielded by 28 those agreements.” Gisbrecht,

; see also Crawford,

1 (quoting Gisbrecht,

) (“a district court charged with determining a 2 reasonable fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney 3 client fee arrangements,’. . . ‘looking first to the contingent fee agreement, then testing it 4 for reasonableness.’”) Therefore, district courts must first look at the contingent-fee 5 agreement, and then determine whether the fees are reasonable. Gisbrecht,

808. Section 406(b) requires the courts to conduct an independent check to assess the 7 reasonableness of the fee request in light of the particular circumstances of the case.

8 at 807. While there is not a definitive list of factors, courts should consider “the character 9 of the representation and the results the representative achieved.”

. Fees may 10 be subject to reduction if the attorney is responsible for delays or if the benefits are large 11 in comparison to the amount of time counsel spent on the case.

Courts should also 12 look at the attorney’s record of hours worked.

13 District courts are generally “deferential to the terms of contingency fee contracts 14 in § 406(b) cases, accepting that the de facto hourly rates may exceed those for non 15 contingency-fee arrangements.” Hearn v. Barnhart,

(N.D.

). Additionally, a section 406 fee award must be offset by any award of 17 attorney's fees granted under EAJA as long as the EAJA award is the lesser of the two 18 awards. Gisbrecht,

. 19 B. Analysis 20 On March 29, 2022, Plaintiff and her counsel entered into fee agreement entitled 21 “Fee Agreement-Federal Court.” (Dkt. No. 23-1.) Under the terms of the contingency 22 fee agreement, Plaintiff agreed and understood that her attorney may petition the Social 23 Security Administration and/or the federal court for attorney’s fee approval of “up to 24 25% of past-due benefits” and that an approved attorney’s fees may exceed $6,000 and 25 the effective hourly rate may exceed well over $1,000 per hour. (Id.) 26 Plaintiff was awarded $59,411.86 in past-due benefits; therefore, her counsel seeks 27 $14,860.46 in attorney’s fee which represents 25% of the past-due benefits and the 28 amount being withheld by the Commissioner. (Dkt. No. 23; Dkt. No. 23-2.) This 1 includes 15 hours of attorney time and 1.2 hours of clerical time. (Dkt. No. 23-3.) Based 2 on the amount sought, counsel seeks an effective hourly rate of $990.69. 3 After a review of the record, there is nothing to support a reduction of the 4 requested fees such as dilatory conduct or other performance by counsel. See Gisbrecht, 5

. The Court has considered the results achieved by counsel which include 6 not only past-due benefits, but also future on-going benefits. According to the billing 7 records, counsel expended 15 hours on the case which is not excessive. It appears that 8 counsel skillfully and efficiently resolved the case in Plaintiff’s favor. Further, counsel’s 9 effective hourly rate of $990.69 is in line with other attorney fee awards he has received 10 and other courts have approved. See Bradley H. v. Comm’r Soc. Sec. Admin., 18cv3611- 11 AFM, Dkt. No. 38 (C.D. Cal. June 22, 2020) (approving effectively hourly rate of 12 $1,709.00 to Troy Monge); Yolanda E. v. Comm’r Soc. Sec. Admin., 21cv8704-AGR, 13 Dkt. No. 27 (C.D. Cal. Mar. 4, 2023) (approving effective hourly rate of $2000 to Troy 14 Mange); see also Crawford,

(approving de facto hourly rates 15 of $519, $875, and $902 in 2009); Roland S. v. Kijakazi, No. 20-cv-1068,

6966153, at *3 (S.D. Cal. Oct. 20, 2023) (approving an effective hourly rate of 17 $1,438.35); Desiree D. v. Saul, No. 19-cv-01522,

, at *3 (S.D. Cal. 18 Apr. 20, 2021) (approving an effective hourly rate of $1,494.34). Finally, Plaintiff filed a 19 declaration in support of her attorney’s fee request. Therefore, after an independent 20 review of the case, the Court concludes that the attorney’s fee of $14,860.46 sought by 21 Plaintiff's counsel pursuant to § 406(b) is reasonable. 22 Conclusion 23 For the reasons stated above, the Court GRANTS the motion for attorney’s fees 24 pursuant to

(b) in the amount of $14,860.46 payable to the Law Offices 25 of Troy D. Monge, APC. Upon receipt of said sum, Attorney Troy D. Monge shall 26 refund $3,608.63 in EAJA fees to Plaintiff Mary Jean R. The hearing date set for 27 / / / 28 / / / 1 || September 20, 2024 shall be vacated. 2 IT IS SO ORDERED. 3 Dated: September 10, 2024 2 4 Hon. athe Ck 5 United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28