1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 HERLINDA RUELAS, Case No. 1:21-cv-00353-HBK 12 Plaintiff, ORDER GRANTING MOTION FOR ATTORNEY'S FEES PURSUANT TO 42 13 v. U.S.C. § 406(b)2

14 MARTIN O’MALLEY, (Doc. No. 31)

COMMISSIONER OF SOCIAL

15 SECURITY,1 16 Defendant. 17 18 Jonathan O. Peña (“Counsel”) of Peña & Bromberg, PC, attorney for Herlinda Ruelas 19 (“Plaintiff”), filed a motion seeking attorney’s fees pursuant to 42 U.S.C. § 406(b) on September 20 27, 2024. (Doc. No. 31). For the reasons set forth below, the motion for attorney’s fees is 21 granted in the amount of $23,085.67 subject to an offset of $5,730.16 in fees previously awarded 22 on April 24, 2023, under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). (Doc. 23 No. 30). 24 //// 25 1 The Court has substituted Martin O’Malley, who has been appointed the Acting Commissioner of Social 26 Security, as the defendant in this suit. See Fed. R. Civ. P. 25(d). 2 Both parties have consented to the jurisdiction of a magistrate judge in accordance with 28 U.S.C. 27 §636(c)(1). (Doc. No. 11).

28 1 I. BACKGROUND 2 On March 8, 2021, Plaintiff brought the underlying action seeking judicial review of a 3 final administrative decision denying Plaintiff’s claim for disability insurance benefits and 4 supplemental security income benefits under the Social Security Act. (Doc. No. 1). On January 5 19, 2023, the Court granted the parties’ stipulation to a voluntary remand pursuant to sentence 6 four of 42 U.S.C. § 405(g). (Doc. Nos. 26, 27). The Court entered an award of $5,730.16 for 7 attorney fees under the Equal Access to Justice Act (“EAJA”) on April 24, 2023. (Doc. Nos. 29, 8 30). 9 On remand, the Commissioner found Plaintiff disabled beginning in May 2018. (Doc. 10 No. 31-1 at 1). Plaintiff was awarded $92,342.70 in retroactive benefits. (Id. at 3). On 11 November 27, 2024, Counsel filed this motion for attorney’s fees in the amount of $23,085.67 12 and argues these fees are reasonable because the contingency fee agreement, which Plaintiff 13 signed, permits Counsel to retain 25% of the past-due benefits, and the requested amount is 14 reasonable. (Doc. No. 31 at 3-6). Defendant did not file any response to the fee requested, and 15 time to do so has expired. (See docket). 16 II. APPLICABLE LAW 17 Attorneys may seek a reasonable fee under the Social Security Act for cases in which they 18 have successfully represented social security claimants. Section 406(b) allows:

19 Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, 20 the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of 25 percent of 21 the total of the past-due benefits to which the claimant is entitled…. 22 42 U.S.C. § 406(b)(1)(A). Counsel for a plaintiff may recover attorneys’ fees under both 42 23 U.S.C. § 406(b) and EAJA. Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). Counsel, however, 24 must refund to the plaintiff the amount of the smaller fee. Id. 25 Fees in social security cases “are usually set in contingency-fee agreements and are 26 payable from past-due benefits awarded to the claimant.” Biggerstaff v. Saul, 840 F. App'x 69, 70 27 (9th Cir. 2020). The fee is not borne by the Commissioner. Crawford v. Astrue, 586 F.3d 1142, 28 1147 (9th Cir. 2009). This provision’s purpose is in part to “ensure that attorneys representing 1 successful claimants would not risk nonpayment of [appropriate] fees.” Gisbrecht, 535 U.S. at 2 805 (internal quotations omitted). When weighing the adequacy of requested attorney’s fees, 3 Courts should respect “the primacy of lawful attorney-client fee agreements.” Id. at 793. 4 Counsel still bears the burden, however, of showing the requested fees are reasonable. Id. at 807. 5 In determining reasonableness, the court may consider the experience of the attorney, the results 6 they achieved, and whether there is evidence the attorney artificially increased the hours worked 7 or the hourly rate charged. Id. at 807-808; Crawford, 586 F.3d at 1151. Generally, any 406(b) 8 award is offset by attorney fees granted under the EAJA. Parrish v. Comm’r of Soc. Sec. Admin., 9 698 F.3d 1215, 1219 (9th Cir. 2012) 10 III. ANALYSIS 11 Here, Plaintiff signed a fee agreement agreeing to pay Counsel 25% of past due benefits 12 awarded to Plaintiff. (Doc. No. 31-2). Counsel was ultimately successful in securing $92,342.70 13 in retroactive benefits for Plaintiff. (Doc. No. 31-1 at 3). In support of this motion, Counsel 14 submitted a time sheet indicating the firm expended 24.5 hours in attorney time on this matter. 15 (Doc. No. 31-3). The time Counsel spent in successfully attaining Plaintiff’s benefits does not 16 appear inflated. 17 Counsel’s request for $23,085.67 in fees for 24.5 hours of work results in an hourly rate of 18 $942.27 for the attorney’s work. (Doc. No. 31 at 4-5). Considering the effective rate of attorney 19 hours in cases involving social security contingency fee arrangements this rate appears consistent 20 with those approved by Ninth Circuit courts. Crawford v. Astrue, 586 F.3d 1142, 1153 (9th Cir. 21 2009) (explaining that the majority opinion found reasonable effective hourly rates equaling 22 $519.00, $875.00, and $902.00) (J. Clifton, concurring in part and dissenting in part); Mayfield v. 23 Comm’r of Soc. Sec., No. 1:16-cv-01084-SAB, ECF No. 24, at 5 (E.D. Cal. March 19, 2020) 24 (approving hours rate of $1,025.22 for paralegal and attorney time); Biggerstaff v. Saul, 840 Fed. 25 App’x 69, 71 (9th Cir. 2020) (affirming $1,400.00 per hour for combined attorney and paralegal 26 work). Attorney hourly rates inevitably rise as their experience increases, and Counsel has been 27 practicing social security law for 13 years. (Doc. No. 31 at 7). Based on the foregoing, the Court 28 finds the requested fees of $23,085.67 are reasonable. Gisbrecht, 535 U.S. at 807-08. 1 An award of attorney’s fees pursuant to 406(b) in the amount of $23,085.67 is, therefore, 2 | appropriate. An award of § 406(b) fees, however, must be offset by any prior award of attorneys’ 3 | fees granted under the EAJA. 28 U.S.C. § 2412(d); Gisbrecht, 535 U.S. 796. As Plaintiff was 4 | previously awarded $5,730.16 in fees pursuant to the EAJA, Counsel shall refund this amount to 5 | Plaintiff. 6 Accordingly, it is ORDERED: 7 1. Plaintiff's Counsel’s motion for an award of attorney’s fees under § 406(b) (Doc. No. 8 31) is GRANTED. 9 2. Plaintiff?’s Counsel is awarded $23,085.67 in attorney fees pursuant to 42 U.S.C. § 10 406(b). 11 3. Counsel shall refund to Plaintiff $5,730.16 of the § 406(b) fees awarded as an offset 12 for the EAJA fees previously awarded pursuant to 28 U.S.C. § 2412(d). 13 4. The Clerk of the Court is respectfully directed to serve a copy of this Order on 14 Plaintiff Herlinda Ruelas, P.O. Box 2568, Porterville, CA, 93257. 15 16 Dated: _ December 30, 2024 law ZA. foareh Zackte 17 HELENA M. BARCH-KUCHTA ig UNITED STATES MAGISTRATE JUDGE

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