1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVEN MICHAEL ELDRIDGE, Case No.: 20cv1135-CAB-RBM

12 Plaintiff, ORDER GRANTING MOTION FOR 13 v. ATTORNEYS’ FEES PURSUANT TO 42 U.S.C. SECTION 1383(d)(2)(B) 14 MARTIN J. O’MALLEY, [Doc. No. 23] COMMISSIONER OF SOCIAL 15 SECURITY, 16 Defendant. 17

18 On March 19, 2024, Plaintiff’s counsel filed a motion for attorneys’ fees pursuant 19 to

(d)(2)(B). [Doc. No. 23.] On April 10, 2024, Defendant filed a 20 response. [Doc. No. 26.] For the reasons set forth below, the motion is GRANTED. 21

22 BACKGROUND 23 In September 2013, Plaintiff applied to the Social Security Administration (“SSA”) 24 for social security benefits. After an administrative law judge (“ALJ”) denied benefits, 25 Plaintiff appealed the denial to this Court. [Doc. No. 1.] On May 6, 2021, 26 Defendant filed the administrative record. [Doc. Nos. 13 and 14.] Thereafter, the parties 27 engaged in settlement negotiations. [See Doc. Nos. 16 and 17.] On September 8, 2021, 28 the parties filed a Joint Motion to Remand to the U.S. Social Security Administration. 1 [Doc. No. 18.] On September 8, 2021, this Court issued an Order for Remand Pursuant 2 to Sentence Four of

(g) and Entry of Judgment. [Doc. No. 19.] On 3 remand, Plaintiff prevailed, and the Commissioner awarded Plaintiff approximately $81, 4 850.84 in retroactive benefits from Title XVI benefits. [Doc. No. 23 at 3.] 5 On November 3, 2021, pursuant to a joint motion, this Court awarded Plaintiff 6 $4,700.00 in attorneys’ fees under the Equal Access to Justice Act (“EAJA”). [Doc. No. 7 22.] Plaintiff filed this motion on March 19, 2024, seeking an attorneys’ fees award of 8 $20,462.00 under section 406(b), which represents 25% of the past-due benefits awarded 9 to Plaintiff. [Doc. No. 23.] Under the contingency fee agreement, Plaintiff and her 10 counsel agreed that Plaintiff’s counsel would be paid, pursuant to section 406(b), a 11 maximum of 25% of the past-due benefits awarded to Plaintiff. [Doc. No. 23-1 at 1, ¶3.] 12 In the motion, Plaintiff’s counsel seeks an order awarding Steven G. Rosales (Plaintiff’s 13 counsel) attorney fees in the amount of $20,462.00, and further ordering Steven G. 14 Rosales to reimburse Steven Michael Eldridge (Plaintiff) the amount of $4,700.00 for the 15 EAJA fees awarded by the Court. [Doc. No. 23 at 2.] In the response to the motion, 16 Defendant takes no position on whether the gross fee that Counsel requests under the 17 Social Security Act is reasonable under the case law. [Doc. No. 26 at 2.] 18 19 LEGAL STANDARD 20 Section 406(b) provides, in relevant part, that “[w]henever a court renders a 21 judgment favorable to a [social security] claimant, ... the court may determine and allow 22 as part of its judgment a reasonable fee” for the claimant's counsel, which can be no more 23 than 25% of the total of past-due benefits awarded to the claimant.

406(b)(1)(A).1 A court may award such a fee even if the court's judgment did not 25 immediately result in an award of past-due benefits; where the court has rendered a 26

27 1 As noted by Plaintiff’s counsel, “[Section] 1383(d)(2)(B) incorporates [Section] 406(b) for SSI 28 purposes when Congress extended fee withholding to SSI cases. Doc. No. 23 at 4, n. 2. 1 judgment favorable to a claimant by reversing an earlier determination by an ALJ and 2 remanding for further consideration, the court may calculate the 25% fee based upon any 3 past-due benefits awarded on remand. See, e.g., Crawford v. Astrue,

(9th 4 Cir. 2009) (en banc). 5 In considering a motion for attorneys' fees under section 406(b), the court must 6 review counsel's request “as an independent check” to ensure that the contingency fee 7 agreement “yield[s] reasonable results.” See Gisbrecht v. Barnhart,

, 807 8 (2002). Section 406(b) “does not displace contingent-fee agreements within the statutory 9 ceiling; instead § 406(b) instructs courts to review for reasonableness fees yielded by 10 those agreements.” Id. at 808–809. To evaluate the reasonableness of a fee request under 11 section 406(b), the court should consider the character of the representation and the 12 results achieved. Id.; see also Crawford,

. This includes analyzing 13 whether substandard representation justifies awarding less than 25% in fees; any delay in 14 the proceedings attributable to the attorney requesting the fee; whether the benefits of the 15 representation are out of proportion to time spent on the case; and the risk counsel 16 assumed by accepting the case. See Crawford, 586 F.3d at 1151–52 (citing Gisbrecht, 17

). 18 When an attorney receives EAJA fees and 406(b) fees for the same work, he or she 19 must refund the smaller award to his or her client. Thus, attorneys are permitted to seek 20 recovery under both EAJA and Section 406(b), and to keep the larger fee, but they must 21 refund the smaller fee to the claimant. Gisbrecht,

; Parrish v. Comm'r of 22 Soc. Sec.,

(9th Cir. 2012). 23 24 ANALYSIS 25 The Court finds that Plaintiff's counsel's fee request is reasonable. As an initial 26 matter, the Court notes that the contingency fee agreement between Plaintiff and his 27 counsel is within the statutory ceiling; the agreement provides that if, after judicial review 28 of any adverse ALJ decision, the SSA awards Plaintiff past-due benefits, Plaintiff will 1 pay counsel a fee no greater than 25% of the past-due benefits awarded. [Doc. No. 23-1 2 at ¶3.] 3 Further, the Court finds that Plaintiff’s counsel’s work on this case was not 4 insubstantial: Counsel filed a complaint and engaged in settlement negotiations which 5 led to a filing of a joint motion to remand to the Commissioner for further proceedings. 6 [Doc. Nos. 16, 17 and 18.] Counsel then prepared and participated in the administrative 7 hearing on remand. [Doc. No. 23 at 4.] Nothing suggests that Plaintiff's counsel provided 8 substandard representation, or that Plaintiff's counsel delayed this litigation in order to 9 amass more in potential fees. And the time Plaintiff's counsel spent on work before this 10 Court—approximately 20 hours and 8 minutes of attorney time —is not out of proportion 11 to the fee award. See Doc. No. 23 at 4-7; cf. Crawford,

(awarding 12 $21,000 in fees where fees represented 19.5 attorney-hours and 4.5 paralegal-hours of 13 work); Macewen v. Colvin, 10cv1263-JLS-MDD,

(S.D. Cal. October 14 18, 2016)(awarding $21,808.50 in fees for 35.2 hours of attorney and paralegal work). 15 Finally, the Court finds that Plaintiff's counsel assumed a substantial risk of not 16 recovering attorneys' fees. At the time that Plaintiff and his counsel signed the 17 contingency fee agreement, Plaintiff had an unfavorable ruling from the ALJ. [Doc. No. 18 23-1.] 19 After a review of the record, the Court finds the fee request reasonable and that it 20 does not constitute a “windfall” to Plaintiff's counsel. See Gisbrecht,

. 21 22 CONCLUSION 23 For the reasons set forth above, the Court GRANTS Plaintiff’s counsel’s motion 24 for attorneys’ fees pursuant to

(b). The Court AWARDS Steven G. 25 Rosales attorneys’ fees in the amount of $20,462.00. The Court HEREBY ORDERS 26 / / / / / 27 / / / / / 28 / / / / / 1 || Steven G. Rosales to reimburse Steven Michael Eldridge the amount of $4,700.00 for 2 || EAJA fees awarded by this Court. 3 IT IS SO ORDERED. 4 Dated: April 23, 2024 Ok ° Hon. Cathy Ann Bencivengo 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28