1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 SUSAN CERVANTEZ, Case No. 1:23-cv-00185-SKO 11 Plaintiff, ORDER GRANTING PLAINTIFF’S 12 v. COUNSEL’S UNOPPOSED MOTION FOR ATTORNEY’S FEES PURSUANT 13 LELAND DUDEK, TO

(b) Acting Commissioner of Social Security1, 14 (Doc. 24) Defendant. / 15 16 I. INTRODUCTION 17 18 On January 27, 2025, Jonathan Omar Pena (“Counsel”), counsel for Plaintiff Susan 19 Cervantez (“Plaintiff”), filed a motion for an award of attorney’s fees pursuant to

(b) 20 (“section 406(b)”). (Doc. 24.) On January 28, 2025, the Court issued a minute order requiring 21 Plaintiff and the Commissioner to file their responses in opposition or statements of non-opposition 22 to Counsel’s motion, if any, by no later than February 13, 2025. (Doc. 26.) Plaintiff and the 23 Commissioner were served with a copy of the motion for attorney’s fees. (See Doc. 25.) No 24 opposition to the motion was filed by any party. 25 For the reasons set forth below, Counsel’s motion for an award of attorney’s fees is granted 26 1 On February 19, 2025, Leland Dudek was appointed the Acting Commissioner of the Social Security Administration. 27 See https://blog.ssa.gov/statement-from-acting-commissioner-dudek/ (last visited by the Court on February 24, 2025). He is therefore substituted as the defendant in this action. See

(g) (referring to the “Commissioner’s 28 Answer”);

(d) (“the person holding the Office of the Commissioner shall, in his official capacity, 1 in the amount of $18,236.00, subject to an offset of $5,656.77 in fees already awarded pursuant to 2 the Equal Access to Justice Act (“EAJA”),

(d), on December 14, 2023 (see Doc. 3 23). 4 II. BACKGROUND 5 Plaintiff brought the underlying action seeking judicial review of a final administrative 6 decision denying her claim for disability benefits under the Social Security Act. (Doc. 1.) The 7 parties stipulated to voluntarily remand the case pursuant to sentence four of

(g) on 8 September 15, 2023, and judgment was entered in favor of Plaintiff and against the Commissioner 9 on September 18, 2023. (Docs. 19, 20, 21.) On December 12, 2023, the parties stipulated to an 10 award of $5,656.77 in attorney fees under EAJA, which was entered on December 14, 2023. (Docs. 11 22, 23.) 12 On remand, the Commissioner found Plaintiff disabled. (Doc. 24 at 3.) On January 13, 13 2025, the Commissioner issued a letter to Plaintiff approving her claim for benefits and awarding 14 her $72,944.00 in back payments beginning January 2020. (See Doc. 24-2 at 3 (indicating 25% of 15 past due benefits totals $18,236.00.).) On January 27, 2025, Counsel filed a motion for attorney’s 16 fees in the amount of $18,236.00, equal to 25% of Plaintiff’s back benefits, with an offset of 17 $5,656.77 for EAJA fees already awarded. (Doc. 24 at 1–2.) It is Counsel’s section 406(b) motion 18 for attorney’s fees that is currently pending before the Court. 19 III. DISCUSSION 20 Pursuant to the Social Security Act, attorneys may seek a reasonable fee for cases in which 21 they have successfully represented social security claimants. Section 406(b) provides the following: 22 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court may determine and 23 allow as part of its judgment a reasonable fee for such representation, not in excess 24 of 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of Social Security may . . . certify 25 the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits . . . . 26 27

(b)(1)(A) (emphasis added). “In contrast to fees awarded under fee-shifting 28 provisions such as

, the fee is paid by the claimant out of the past-due benefits 1 awarded; the losing party is not responsible for payment.” Crawford v. Astrue,

, 1147 2 (9th Cir. 2009) (en banc) (citing Gisbrecht v. Barnhart,

(2002)). The 3 Commissioner has standing to challenge the award, despite that the section 406(b) attorney’s fee 4 award is not paid by the government. Craig v. Sec’y Dep’t of Health & Human Servs.,

324, 328 (4th Cir. 1989), abrogated on other grounds in Gisbrecht,

. The goal of 6 fee awards under section 406(b) is to provide adequate incentive to represent claimants while 7 ensuring that the usually meager disability benefits received are not greatly depleted. Cotter v. 8 Bowen,

(8th Cir. 1989), abrogated on other grounds in Gisbrecht,

807. 10 The 25% maximum fee is not an automatic entitlement, and courts are required to ensure 11 that the requested fee is reasonable. Gisbrecht, 535 U.S. at 808–09 (Section 406(b) does not displace 12 contingent-fee agreements within the statutory ceiling; instead, section 406(b) instructs courts to 13 review for reasonableness fees yielded by those agreements). “Within the 25 percent boundary . . . 14 the attorney for the successful claimant must show that the fee sought is reasonable for the services 15 rendered.”

; see also Crawford,

(holding that section 406(b) “does not 16 specify how courts should determine whether a requested fee is reasonable” but “provides only that 17 the fee must not exceed 25% of the past-due benefits awarded”). 18 Generally, “a district court charged with determining a reasonable fee award under 19 § 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee arrangements,’ . . . ‘looking 20 first to the contingent-fee agreement, then testing it for reasonableness.’” Crawford,

1148 (quoting Gisbrecht,

). The United States Supreme Court has identified 22 several factors that may be considered in determining whether a fee award under a contingent-fee 23 agreement is unreasonable and therefore subject to reduction by the court: (1) the character of the 24 representation; (2) the results achieved by the representative; (3) whether the attorney engaged in 25 dilatory conduct in order to increase the accrued amount of past-due benefits; (4) whether the 26 benefits are large in comparison to the amount of time counsel spent on the case; and (5) the 27 attorney’s record of hours worked and counsel’s regular hourly billing charge for non-contingent 28 cases.

(citing Gisbrecht, 535 U.S. at 807–08). 1 2 Here, the fee agreement between Plaintiff and Counsel, signed by both parties, provides: It is possible that I will not pay any attorney fee out of my past-due benefits for my 3 attorney's work on my behalf in court, but rather my attorney will receive the EAJA 4 award as his or her sole compensation for representing me in court. However, my attorney has the right under this contract to ask the court to award as much as 25% 5 of my past-due benefits for representing me in court. If the court awards an attorney fee out of my past-due benefits and also awards an EAJA fee for that same work, 6 my attorney must refund to me the smaller fee. 7 (Doc. 24-3 (signed January 30, 2023).) 8 The Court has considered the character of Counsel’s representation of Plaintiff and the good 9 results achieved by Counsel, which included an award of benefits. Counsel spent 23.3 hours 10 representing Plaintiff, ultimately gaining a favorable decision in that the Commissioner’s decision 11 was reversed and remanded to the agency for reconsideration. (Doc. 24 at 3, 7; Doc. 24-4 (time 12 sheets accounting for 23.3 attorney hours spent representing Plaintiff before this Court).) There is 13 no indication that a reduction of the award is warranted due to any substandard performance by 14 Counsel, as Counsel secured a successful result for Plaintiff. There is also no evidence that Counsel 15 engaged in any dilatory conduct resulting in delay. 16 Although the accepted range in the Fresno Division for attorneys like Counsel with ten to 17 twenty years of experience (see Doc. 24 at 7) is between $250 and $325 per hour in non-contingency 18 cases, see Webb v. Cnty. of Stanislaus, No. 1:19-cv-01716-DAD-EPG,

, at *6 (E.D. 19 Cal. Feb. 14, 2022), here the effective hourly rate requested equals $782.66 per hour. (See Doc. 24 20 at 5.) This hourly rate is not excessive when compared to what the Ninth Circuit has approved in 21 cases involving social security contingency fee arrangements. See Crawford,

, 1153 22 (9th Cir. 2009) (explaining that the majority opinion found reasonable effective hourly rates 23 equaling $519, $875, and $902) (J. Clifton, concurring in part and dissenting in part); see also 24 Thomas v. Colvin, No. 1:11−cv−01291−SKO,

, at *2−3 (E.D. Cal. Apr. 3, 2015) 25 (upholding an effective hourly rate of $1,093.22 for 40.8 hours of work); Jamieson v. Astrue, No. 26 1:09CV0490 LJO DLB,

, at *2 (E.D. Cal. Feb. 9, 2011) (upholding an effective 27 hourly rate of $1,169.49 for 29.5 hours of work); Palos v. Colvin, No. CV 15−04261−DTB, 2016

, at *2 (C.D. Cal. Sept. 20, 2016) (upholding an effective hourly rate of $1,546.39 for 1 9.7 hours of work); Villa v. Astrue, No. CIV−S−06−0846 GGH,

, at *1−2 (E.D. 2 Cal. Jan. 7, 2010) (approving section 406(b) fees exceeding $1,000 per hour for 10.4 hours of work, 3 and noting that “[r]educing § 406(b) fees after Crawford is a dicey business”). Further, attorney’s 4 fees in the amount of $18,236.00 do not exceed 25% of the past-due benefits awarded and are not 5 excessive in relation to the past-due award. See generally Ortega v. Comm’r of Soc. Sec., No. 1:12– 6 cv–01030–AWI–SAB,

, at *3 (E.D. Cal. Aug. 21, 2015) (granting petition for an 7 award of attorney’s fees pursuant to section 406(b) in the amount of $24,350.00); Thomas, 2015

, at *3 (granting petition for an award of attorney’s fees pursuant to section 406(b) in 9 the amount of $44,603.50); Boyle v. Colvin, No. 1:12–cv–00954–SMS,

, at *2 10 (E.D. Cal. Dec. 19, 2013) (granting petition for an award of attorney’s fees pursuant to section 11 406(b) in the amount of $20,577.57); Jamieson,

, at *2 (recommending an award 12 of attorney’s fees pursuant to section 406(b) in the amount of $34,500). 13 In making this determination, the Court recognizes the contingent-fee nature of this case and 14 Counsel’s assumption of risk in agreeing to represent Plaintiff under such terms. “District courts 15 generally have been deferential to the terms of contingency fee contracts in § 406(b) cases.” Hearn 16 v. Barnhart,

(N.D. Cal. 2003) (“Because attorneys like Mr. Sackett 17 contend with a substantial risk of loss in Title II cases, an effective hourly rate of only $450 in 18 successful cases does not provide a basis for this court to lower the fee to avoid a ‘windfall.’” 19 (quoting Gisbrecht,

)). Attorneys who agree to represent claimants pursuant to a 20 contingent fee agreement assume the risk of receiving no compensation for their time and effort if 21 the action does not succeed.

Here, Counsel accepted substantial risk of loss in representing 22 Plaintiff, whose application had already been denied at the administrative level. Plaintiff agreed to 23 the contingent fee. (See Doc. 24-3.) Working efficiently and effectively, Counsel secured a 24 stipulated remand, and ultimately, the award of substantial benefits to Plaintiff. (See Docs. 19, 20, 25 24-2.) 26 An award of attorney’s fees pursuant to section 406(b) in the amount of $18,236.00 is, 27 therefore, appropriate. An award of section 406(b) fees, however, must be offset by any prior award 28 of attorney’s fees granted under the EAJA.

; Gisbrecht,

. As 1 Plaintiff was previously awarded $5,656.77 in fees pursuant to the EAJA, Counsel shall refund this 2 amount to Plaintiff. 3 IV. CONCLUSION AND ORDER 4 For the reasons stated above, the Court concludes that the fees sought by Counsel pursuant 5 to section 406(b) are reasonable. Accordingly, IT IS ORDERED that: 6 1. Counsel’s unopposed motion for an award of attorney’s fees pursuant to

406(b) in the amount of $18,236.00 (Doc. 24) is granted; 8 2. Counsel shall refund to Plaintiff $5,656.77 of the section 406(b) fees awarded as an 9 offset for the EAJA fees previously awarded pursuant to

(d) (Doc. 23); and 10 3. Counsel for Plaintiff shall file on the Court’s docket proof of service of this order 11 upon Plaintiff at her current or last known address. 12 IT IS SO ORDERED. 13

14 Dated: February 25, 2025 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 15

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