1 2 UNITED STATES DISTRICT COURT 3 SOUTHERN DISTRICT OF CALIFORNIA 4 Case No.: 23CV2254-BLM 5 JODIE R BEHRENS,

6 Plaintiff, ORDER GRANTING MOTION FOR AUTHORIZATION OF ATTORNEY’S 7 v. FEES UNDER,

(b)

8 COMMISSIONER OF SOCIAL SECURITY, [ECF No. 15] 9 Defendant. 10 11 Currently before the Court is Plaintiff’s March 4, 2025, Motion for Authorization of 12 Attorney’s Fees Under

(b) [ECF No. 15 (“Mot.”)] and Defendant’s March 5, 2024, 13 response [ECF No. 16 (“Response”)]. For the reasons set forth below, Plaintiff’s motion is 14 GRANTED. 15 BACKGROUND 16 On December 9, 2023, Plaintiff filed a complaint in this matter seeking judicial review of 17 the denial of her application “for Social Security Disability Insurance benefits and Supplemental 18 Security Income benefits for lack of disability.” ECF No. 1. 19 On February 9, 2024, the parties filed a Joint Motion for Voluntary Remand. ECF No. 10. 20 On February 12, 2024, the Court granted the parties’ Joint Motion for Voluntary Remand. ECF 21 No. 11. 22 On March 27, 2024, the parties filed a Joint Motion for the Award Of Attorney Fees 23 Pursuant To The Equal Access To Justice Act,

(d). ECF No. 13. The Court 24 granted the parties’ motion on March 29, 2024, and awarded Plaintiff attorney’s fees and 25 expenses in the total amount of $1345.41 and costs in the amount of $0.00, subject to the terms 26 of the parties’ joint motion [see ECF No. 13]. ECF No. 14. On remand, Plaintiff prevailed, and 27 the Commissioner awarded Plaintiff approximately $60,090.00 in past due RSDI benefits. Mot. 1 On March 4, 2025, Plaintiff filed a Motion for Attorney’s Fees Under

(b). 2 Mot. On March 5, 2025, Defendant filed a Response to Plaintiff’s Motion for Attorney’s Fees 3 Under

(b). Response. 4 PLAINTIFF’S POSITION 5 Plaintiff seeks an order from the Court awarding attorney fees pursuant to

406(b) in the amount of $6,009.00 with a credit to Plaintiff for the EAJA fees previously paid in 7 the amount of $1,345.41. Mot. at 2-4. Plaintiff argues that the $6,009.00 request is reasonable 8 in light of the work performed and the results achieved.

; see also ECF No. 15-4, 9 Declaration of John D. Metsker (“Metsker Decl.”) at ¶ 6. Plaintiff notes that her counsel spent 10 5.5 hours working the case before the District Court. ECF No. 15-3 (Record of Activity); see also 11 Metsker Decl. at ¶ 5. Plaintiff's counsel seeks 10% of the net payable past due benefits under 12 the terms of the contingency fee agreement ($6,009.00 based on the $60,090.00 judgment). 13

. 14 DEFENDANT’S POSITION 15 Defendant states that it “neither supports nor opposes Counsel’s request for attorney’s 16 fees under

(b).” Response at 3. Defendant notes that “[i]t is for the Court to 17 decide if the request for attorney’s fees under

(b) is reasonable under the law.” 18

. Defendant states that in reaching its finding, the Court must consider the character of 19 the representation and results achieved, whether counsel was responsible for delay, and 20 whether the benefits were large in comparison to the time expended by counsel.

Defendant 21 notes that Plaintiff’s counsel’s requested fees would “result in reimbursement at a rate of 22 $1,107.27 per billed attorney hour.”1

Defendant further notes that “[w]hen an attorney 23 receives fees under both the Equal Access to Justice Act and

(b), the 24

25 1 The hourly rate is calculated by dividing $6,009.00 [fee requested] by 5.5 hours [total 26 hours worked]. That equals $1092.54 per billed attorney hour not $1,107.27. Defendant 27 appears to have divided $6090 by 5.5 hours, but the fee requested is $6009 not $6090. Response at 2. 1 attorney must refund the smaller fee awarded to the claimant.”

. 2 LEGAL STANDARD 3 Pursuant to Section 406(b), “[w]henever a court renders a judgment favorable to a [social 4 security] claimant, ... the court may determine and allow as part of its judgment a reasonable 5 fee for such representation, not in excess of 25 percent of the total of the past-due benefits.” 6

(b)(1)(A). “Within the 25 percent boundary, ... the attorney for the successful 7 claimant must show that the fee sought is reasonable for the services rendered.” Gisbrecht v. 8 Barnhart,

(2002). When contemplating a fee motion under Section 406(b), 9 the Court must first look to the contingency fee agreement and then test for reasonableness. 10 See Crawford v. Astrue,

(9th Cir. 2009). To determine reasonableness, the 11 Court may consider “(1) the character of the representation; (2) the results achieved; (3) 12 whether the attorney engaged in dilatory conduct; (4) whether the benefits are large in 13 comparison to the amount of time counsel spent on the case; and (5) the attorney's record of 14 hours worked and counsel's regular hourly billing charge for non-contingent cases.” Barry H. v. 15 Kijakazi,

, at *1 (S.D. Cal., Sept. 13, 2023) (quoting Avina v. Saul,

2662309, at *1 (S.D. Cal. June 29, 2021)). The Court should also consider whether inferior 17 representation justifies an award of less than 25% such as “any delay in the proceedings 18 attributable to the attorney requesting the fee; whether the benefits of the representation are 19 out of proportion to time spent on the case; and the risk counsel assumed by accepting the 20 case.” Bartle v. Kijakazi,

, at *1–2 (S.D. Cal., Sept. 7, 2023) (citing Crawford, 21 586 F.3d at 1151–52) (citing Gisbrecht,

)). 22 When an attorney receives EAJA fees and § 406(b) fees for the same work, he or she 23 must refund the smaller award to his or her client. See Gisbrecht,

. 24 ANALYSIS 25 The Court finds that Plaintiff's fee request is reasonable. On November 17, 2023, Plaintiff 26 entered into a Social Security Representation Agreement with counsel wherein she agreed that 27 “[t]he federal court attorneys’ fee for representation in my disability claim(s) shall be the 1 from my claim or claims, OR 2) The amount of any award ordered pursuant to the Equal Access 2 To Justice Act (EAJA) for the hours expended in pursuit of my claim(s) against the Social Security 3 Administration.” Metsker Decl. at ¶ 4, see also ECF No. 15-1, Contingent Federal Court Attorney- 4 Client Fee Agreement (emphasis in original). Accordingly, the contingency fee agreement is 5 within the statutory ceiling. See

(b)(1)(A). Because there is no evidence of “fraud 6 or overreaching” in the negotiation of the Representation Agreement and because the fee 7 agreement is within the statutory ceiling, the Court looks to the character of the representation 8 and the results achieved to determine reasonableness. Crawford,

; see also 9 Gisbrecht,

. 10 Plaintiff’s counsel did not render substandard representation or delay litigation. See 11 Crawford, 586 F.3d at 1151–52. Before Plaintiff’s counsel drafted and filed a Merits Brief, on 12 February 9, 2024, the parties filed a Joint Motion for Voluntary Remand Pursuant to Sentence 13 Four of

(g). ECF No. 10. The district court later granted the joint motion. ECF 14 No. 11. On remand, Plaintiff’s counsel achieved a fully favorable decision for his client and 15 Plaintiff was granted $60,090.00 in retroactive disability benefits. ECF No. 15-2 (“Notice of 16 Award”); see also Mot. at 3. This is a successful result for Plaintiff that would not have been 17 achieved with a substandard performance by her counsel. 18 The Court notes that counsel’s hourly rate of $1092.54 is on the higher end, 19 however, several cases have found rates of $1300 - $1600 to be appropriate, including cases in 20 this district. See Roland S. v. Kijakazi,

, at *3 (S.D. Cal., Oct. 20, 2023) (“[t]he 21 de facto hourly rate is thus $1,438.35, which—although high, as discussed in further detail 22 below—is in line with hourly rates approved by courts in similar cases, including in this district.”) 23 (citing Desiree D. v. Saul,

, at *3 (S.D. Cal. Apr. 20, 2021) (approving a 24 hourly rate of $1,494.34); Martinez v. Saul,

, at *2 (S.D. Cal. July 24, 25 2019) (approving a hourly rate of $1,488.83); and Reddick v. Berryhill,

2330895, at *2 (S.D. Cal. May 30, 2019) (approving a hourly rate of $1,990 upon 27 reconsideration after previously reducing the fee award to an effective hourly rate of $1,080.26). 1 || achieve a successful result. Metsker Decl. at 4 5; ECF No 15-3. Counsel has submitted a detailed 2 || billing statement in support of the requested fee that the Court has reviewed.

There is 3 ||nothing in the billing statement showing “substandard performance, delay, or benefits that are 4 in proportion to the time spent on the case.” Crawford,

. There is also 5 ||no evidence or indication that Plaintiff’s counsel’s work was inferior, that he engaged in dilatory 6 || conduct, or that he delayed the proceedings to potentially incur more fees. Accordingly, none of 7 || the factors the Court considers for reasonableness favor reducing the fee award. 8 In further support of its finding, the Court notes that taking Plaintiff's case on a 9 || contingency basis created a substantial risk for Plaintiff's counsel of not recovering any attorney’s 10 || fees. Plaintiff already had a negative decision from the ALJ when she sought review in this Court. 11 || While the hourly rate is high, the amount of the fees requested does not exceed the 25 percent 12 statutory cap and, in fact, is 15 percent less than the statutory cap. Furthermore, Plaintiff filed 13 ||no objection to the request, and counsel achieved excellent results for his client. 14 CONCLUSION 15 Plaintiff's counsel bore the risk of a contingency fee arrangement, successfully got the 16 matter remanded, received an order for retroactive benefits of $60,090.00 for his client, and 17 ||seeks 10% of the past due benefits. Accordingly, the Court finds that a downward adjustment 18 || of the requested fee is not appropriate, and GRANTS Plaintiff’s motion for fees pursuant to 42

(b). The Court awards to John Metsker DBA The Metsker Law Firm attorney fees 20 |/in the amount of $6,009.00. The Court orders John Metsker DBA The Metsker Law Firm to 21 || reimburse Jodie R. Behrens the amount of $1,345.41 for EAJA fees previously received. 22 IT IS SO ORDERED. 23 || Dated: 3/21/2025 lobe Mager 24 Hon. Barbara L. Major United States Maqistrate Judde 25 26 27 28