1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MARLITA O., Case No.: 23-cv-572-KSC

12 Plaintiff, ORDER DENYING WITHOUT 13 v. PREJUDICE COUNSEL’S MOTION FOR ATTORNEY FEES PURSUANT 14 FRANK BISIGNANO, Commissioner of TO 42 U.S.C. 406(b) Social Security,1 15 Defendant. 16

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18 Plaintiff’s counsel Steven G. Rosales filed a Motion for Attorney fees requesting 19 “the Court for an order setting attorney fees pursuant to

(b) in the amount 20 of $33,753.80 . . . with a credit to plaintiff for the [Equal Access to Justice Act (“EAJA”)] 21 fees previously paid in the amount of $5,858.00.” Dkt. No. 21 at 1. Neither plaintiff nor 22 the Commissioner of Social Security filed an opposition to the Motion, and the time to do 23 so has passed. Dkt. No. 23. For the reasons stated below, the Court DENIES the Motion 24 without prejudice. 25

26 27 1 Frank Bisignano became the Commissioner of Social Security on May 6, 2025, and the Court, therefore, substitutes him as the defendant in this matter. See Fed. R. Civ. P. 28 1 BACKGROUND 2 On December 13, 2023, the Court issued judgment in plaintiff’s favor and remanded 3 the case to the Social Security Administration (“SSA”) to reconsider the record. Dkt. No. 4 16. Thereafter, the Court adopted the parties’ stipulation and ordered an EAJA fee award 5 in the amount of $5,858. Dkt. No. 20. 6 On April 22, 2025, an administrative law judge (“ALJ”) issued a decision favorable 7 to plaintiff, finding she had been under a disability since her alleged onset date, February 8 25, 2020. Dkt. No. 21-2. The ALJ also declined to authorize counsel’s fee agreement with 9 plaintiff because: 10 The fee agreement allows for a fee that exceeds the lesser of 25% of the past- due benefits or $9200[; and] 11

12 The fee agreement includes a provision limiting the agreement’s application to services through a specific level of the administrative appeal process [and] 13 [plaintiff’s] claim was favorably decided beyond the specified level so 14 approval would violate the agreement.

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16 Dkt. No. 21-2 at 11. The ALJ granted Mr. Rosales 15 days to challenge the fee agreement 17 determination and directed he “must file a fee petition if he or she wants to charge or collect 18 a fee.”

. 19 On June 8, 2025, the SSA issued a Notice of Award (“Notice”) informing plaintiff 20 she was “entitled to monthly disability benefits beginning August 2020.” Dkt. No. 21-3 at 21 1. The Notice informed plaintiff her “first payment [was] for $101,261.40,” which was 22 “the money . . . due through May 2025,” and thereafter she will receive $2,810 per month. 23

. The Notice further stated “[w]e cannot approve the fee agreement between you 24 and your representative because it sets a fee amount that is more than the lesser of the 25 25 percent of past-due benefits or $9200,” and instructed “[i]f your representative wants us 26 to pay the fee from your withheld benefits, he or she must ask us to approve the fee within 27 60 days.” Dkt. No. 21-3 at 3. The Notice does not say whether the SSA withheld any 28 portion of plaintiff’s past-due benefits for attorney fees. Dkt. No. 21-3. 1 DISCUSSION 2 “Whenever a court renders a judgment favorable to a claimant . . . who was 3 represented before the court by an attorney,” the court may allow “a reasonable fee for such 4 representation, not in excess of 25 percent of the total past-due benefits.”

406(b)(1)(A). Contingent fee arrangements are the primary avenue by which Social 6 Security plaintiffs’ counsel are compensated, subject to the 25 percent cap, although 7 counsel must show that the fee sought is reasonable for the services rendered. Gisbrecht v. 8 Barnhart,

(2002). Fees awarded under § 406(b) are paid from the 9 claimant’s past-due benefits, not by the Commissioner. Crawford v. Astrue,

, 10 1147 (9th Cir. 2009) (en banc). 11 Mr. Rosales has not demonstrated his fee request is reasonable. See Gisbrecht, 535 12 U.S. at 807 (“the attorney for the successful claimant must show that the fee sought is 13 reasonable for the services rendered”). Although he was required to do so, Mr. Rosales did 14 not secure the SSA’s authorization for his fee agreement with plaintiff. See

404.1720(B)(3) (Counsel “must not charge or receive any fee unless [the Commissioner of 16 Social Security Administration has] authorized it, and a representative must not charge or 17 receive any fee that is more than the amount . . . authorize[d].”) 18 Moreover, he has not offered sufficient evidence to show the amount of plaintiff’s 19 past-due benefits award. The Notice states plaintiff’s “first payment” was for $101,261.40, 20 which was “the money” due to her through May 2025; however, it is unclear whether this 21 sum is the entire balance of her past-due benefits, or whether the SSA withheld a portion 22 of her past-due benefits for attorney fees.2 Dkt. No. 21-3. Furthermore, even if the SSA 23 withheld a portion of plaintiff’s past-due benefit award for attorney fees, it is unclear 24 25 26 2 Instead of presenting sufficient evidence of plaintiff’s past-due benefit award and attorney 27 fee award withholding, counsel argues that because the SSA sent plaintiff a net payment of $101,261.40, the SSA must have withheld $33,753.80 for a potential attorney fee award. 28 1 whether the SSA continues to retain these funds for Mr. Rosales’ benefit, as his 60 day 2 || deadline to respond to the Notice was August 7, 2025. Dkt. No. 21-3 at 3-4. 3 CONCLUSION 4 In sum, the Court cannot conclude counsel’s fee request is reasonable and, therefore, 5 || denies the Motion without prejudice. See Seufert v. Kijakaji, No. 20-CV-02239-GJS, 2023 6 || WL 8114864, at *2 (C.D. Cal. Oct. 2, 2023) (finding counsel failed to demonstrate Section 7 ||402(b) fee request was reasonable where “the [SSA] declined to approve Counsel's fee 8 agreement because it permits a fee amount greater than ‘25 percent of past-due benefits or 9 ||$7200.00’” and “the Court is unable to determine the amount of past-due disability benefits 10 || awarded.’’). 11 IT IS SO ORDERED. 12 ||Dated: December 16, 2025 A /; ) 13 WV GP EE 14 Hori. Karen S. Crawford United States Magistrate Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28