1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KELLY MAGEE, Case No.: 20cv0548-SBC

12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. ATTORNEY’S FEES PURSUANT TO

(b) 14 MARTIN O’MALLEY, Commissioner of

the Social Security Administration, 15 [ECF No. 19] Defendant. 16

17 18 Before the Court is Plaintiff’s motion for an award of attorney’s fees under 42 U.S.C. 19 § 406(b). (ECF No. 19.) Defendant responded to the motion, stating that Defendant neither 20 supports nor opposes Plaintiff’s request for attorney’s fees. (ECF No. 21.) For the reasons 21 stated below, the motion is GRANTED. 22 I. PROCEDURAL BACKGROUND 23 On March 23, 2020, Plaintiff filed a complaint, seeking judicial review of the denial 24 of her application for social security benefits. (ECF No. 1.) The parties consented to 25 Magistrate Judge jurisdiction over the case. (ECF No. 6.) On November 12, 2020, the Court 26 granted the parties’ motion for voluntary remand pursuant to sentence four of

405(g). (ECF No. 15.) 28 On December 16, 2020, the parties filed a joint motion for attorney’s fees pursuant 1 to the Equal Access to Justice Act (“EAJA”), which the Court granted, awarding fees in 2 the amount of $5,000. (ECF Nos. 17-18.) 3 On January 27, 2024, the Social Security Administration (“SSA”) issued a Notice of 4 Award to Plaintiff, awarding her a total of $107,624.90 in past benefits. (ECF No. 19-1.) 5 The letter notified Plaintiff that the SSA would withhold 25 percent of the total past-due 6 benefits (in the amount of $25,430.75) for potential payment to Plaintiff’s attorney. (Id. at 7 3.) Plaintiff subsequently filed this motion for fees. 8 II. DISCUSSION 9 In the motion, Plaintiff requests an award of attorney fees to her attorney, Martha 10 Yancey, in the amount of $25,430.75, representing the full 25% of the past-due benefits 11 award. (ECF No. 19 at 1.) Plaintiff and Ms. Yancey entered into a contingency fee 12 agreement, where Plaintiff agreed that “. . . my attorney shall charge and receive as the fee 13 an amount equal to twenty-five percent (25%) of the past-due benefits that are awarded to 14 my family and me in the event my case is won.” (ECF No. 19-3 at 1.) 15 Under

(b), “a court may allow a reasonable fee . . . not in excess of 16 25 percent of the . . . past-due benefits awards to the claimant” as attorney’s fees for 17 representation in court proceedings. “[A] district court charged with determining a 18 reasonable fee award under § 406(b)(1)(A) must respect ‘the primacy of lawful attorney- 19 client fee agreements,’ ‘looking first to the contingent-fee agreement, then testing it for 20 reasonableness.’” Crawford v. Astrue,

(9th Cir. 2009) (citing 21 Gisbrecht v. Barnhart,

(2002)). Under this framework, the court does not 22 start with a lodestar calculation; rather, the court “first look[s] to the fee agreement and 23 then adjusts downward if the attorney provided substandard representation.” Id. at 1151. 24 “The court may properly reduce the fee for substandard performance, delay, or benefits 25 that are not in proportion to the time spent on the case.” Id. 26 Plaintiff’s counsel contends that the request of fees is reasonable because she spent 27 significant time on the case, which was very fact driven, and she achieved excellent results 28 for her client. (ECF No. 19 at 4.) Her records show that she billed 25.49 hours to the case, 1 making her request an effective hourly rate of $997.67. (Id.) She cites several cases that 2 have approved rates similar and higher in other social security cases. Id. (citing Marshall 3 v. Saul, Case No. 16cv666-BAS (PCL) (S.D. Cal. June 1, 2020) (approving rate of 4 $1526.75); Reddick v. Berryhill, Case No. 16cv29-BTM (BLM) (S.D. Cal. May 30, 2019) 5 (approving rate of $1,990.74); Crawford,

(affirming rates of $519, $875, 6 and $902)). 7 First, the Court notes that there is nothing to suggest that Plaintiff’s counsel was 8 dilatory in prosecution of the case or that there was substandard performance, so neither of 9 these factors weigh in favor of a downward departure from the 25% requested. The only 10 remaining factor is the reasonableness of the effective hourly rate. Though the rate is high, 11 it is consistent with other rates that have been approved by courts in similar cases. In 12 addition to the cases cited by Plaintiff’s counsel, courts have approved comparable 13 attorney’s fees in other similar cases as well. See e.g. Martinez v. Berryhill, No. 13-CV- 14 272 JLS (JLB),

, at *3 (S.D. Cal. Oct. 19, 2017) (awarding de facto 15 hourly rate of $886.52 per hour for 28.2 hours); Truett v. Berryhill, No. 13-CV-2742 W 16 (BLM),

, at *2 (S.D. Cal. Aug. 31, 2017) (awarding de facto hourly rate 17 of $1,788.62 for 12.3 hours of work); Shubin v. Colvin, No. SACV 13-0146-DTB, 2015

, at *2 (C.D. Cal. Jan. 15, 2015) (awarding hourly rate of $1,020.40). 19 Further, in taking on the case on a contingency basis, Plaintiff’s counsel shouldered 20 the risk of minimal, if any, payment in the event the appeal would be unsuccessful. Thus, 21 in light of these factors and circumstances, the Court finds that the requested fee is 22 reasonable, and a downward adjustment is not warranted. The Court therefore GRANTS 23 the motion and approves the requested fees in the amount of $25,430.75. 24 Having approved of the fees, an adjustment must be made in light of the Court’s 25 prior award under the EAJA in the amount of $5,000.00. “[I]n order to maximize the award 26 of past-due benefits to claimants and to avoid giving double compensation to attorneys, the 27 savings provision requires a lawyer to offset any fees received under § 406(b) with any 28 award that the attorney receives under § 2412 if the two were for the ‘same work.’” Parrish 1 ||v. Comm’r of Soc. Sec. Admin.,

(9th Cir. 2012). Thus, as □□□□□□□□□□□ 2 ||counsel has also acknowledged, the previous amount recovered under the EAJA must be 3 ||remitted back to Plaintiff. (See ECF No. 19 at 4.) Thus, the Court ORDERS □□□□□□□□□□□ 4 || counsel to refund the amount $5,000.00 back to Plaintiff. 5 Ht. CONCLUSION 6 Accordingly, after due consideration and for the reasons stated above, the Court 7 || GRANTS Plaintiff's motion for authorization of attorney’s fees pursuant to 42 U.S.C. 8 406(b). The Court approves the requested fees in the amount of $25,430.75, currently 9 || withheld by the Social Security Administration, to be released to Plaintiff's counsel. The 10 |/Court further ORDERS Plaintiff's counsel to refund to Plaintiff $5,000.00 that she 11 || previously received under the EAJA. 12 IT IS SO ORDERED. 13 ||Dated: April 11, 2024 14 GF G. 16 Hon.SteveB.Chu United States Magistrate Judge 17 18 19 20 21 22 23 24 25 26 27 28