I. BACKGROUND

22 On March 30, 2021, Plaintiff filed a complaint in this Court challenging the 23 Commissioner’s decision to deny her application for Supplemental Security Income 24 (“SSI”) benefits and Disability Insurance Benefits (“DIB”). See generally Dkt. No. 25

26 1 Plaintiff’s name is partially redacted in compliance with Federal Rule of Civil 27 Procedure 5.2(c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United 28 States. Case 2:21-cv-02727-RAO Document 27 Filed 11/07/22 Page 2 of 4 Page ID #:179

1 1. On August 9, 2021, based on the parties’ Joint Stipulation to Voluntary Remand 2 Pursuant to Sentence Four of 42 U.S.C. § 405(g), the Court issued an order 3 remanding the matter to the Social Security Administration. Dkt. No. 17-18. 4 Judgment was entered the same day. Dkt. No. 19. 5 The Court later entered an order granting the parties’ Stipulation for Award of 6 Attorney’s Fees Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. 7 § 2412(d). Dkt. No. 20. Pursuant to that order, the Court awarded Counsel $1,000.00 8 in EAJA fees. Dkt. No. 21. 9 On May 10, 2022, the Social Security Administration sent Plaintiff a Notice of 10 Decision – Partially Favorable. Dkt. No. 22-2. And on May 21, 2022, The Social 11 Security Administration sent Plaintiff a Notice of Award informing Plaintiff that 12 $11,301.78 of the past-due benefits had been withheld to pay her representative.2 13 Dkt. No. 22-3 at 4. 14 In the Motion, Counsel requests $10,000.00 of the past-due benefits awarded 15 to Plaintiff for attorney’s fees pursuant to 42 U.S.C. § 406(b), which represents less 16 than 25 percent of the past-due benefits. Mot. at 1. The Commissioner filed a 17 Response to the Motion but did not take a position on the reasonableness of the 18 request. Dkt. No. 25. 19 II. DISCUSSION 20 A. 42 U.S.C. §406(b) Fees 21 An attorney who represents a Social Security benefits claimant in court may 22 be awarded “a reasonable fee . . . not in excess of 25 percent of the total of the past- 23 due benefits” awarded to the claimant, payable “out of, and not in addition to, the 24 amount of such past-due benefits.” 42 U.S.C. § 406(b)(1)(A). Attorneys may not 25 obtain additional fees based on a claimant’s continuing entitlement to benefits. Id. 26 27 2 The Notice of Award does not state the total amount of past-due benefits that Plaintiff will receive. However, assuming $11,301.78 represents 25 percent of the 28 total award, Plaintiff’s total past-due benefits equals approximately $45,207.12.

2 Case 2:21-cv-02727-RAO Document 27 Filed 11/07/22 Page 3 of 4 Page ID #:180

1 In Crawford v. Astrue, the Ninth Circuit addressed the calculation of attorney 2 fees, stating that “[a] district court charged with determining a reasonable fee award 3 under § 406(b) must respect . . . ‘lawful attorney-client fee agreements . . . looking 4 first to the contingent-fee agreement, then testing it for reasonableness.’” 586 F.3d 5 1142, 1148 (9th Cir. 2009) (quoting Gisbrecht v. Barnhart, 535 U.S. 789, 122 S. 6 Ct. 1817, 152 L. Ed. 2d 996 (2002)). However, “the court may properly reduce the 7 fee for substandard performance, delay, or benefits that are not in proportion to the 8 time spent on the case.” Crawford, 586 F.3d at 1151. 9 Attached to the Motion, Counsel provides a summary of hours indicating that 10 Counsel’s firm spent a total of 5.62 hours on this matter, a combination of 3.52 hours 11 of attorney time and 2.1 hours of paralegal time. Mot. at 3; Dkt. No. 22-4. 12 Approximately, .5 hours of this time was spent on work related to communications 13 with the Appeals Board and/or regional counsel. See Dkt. No. 22-4. The Court will 14 only consider time expended in federal court. See 42 U.S.C. § 406(b). 15 Several reasons indicate that Counsel’s request is reasonable and that the 16 Motion should be granted. 17 First, the Court notes that Plaintiff agreed, in writing, to Counsel receiving 25 18 percent of any back pay awarded, contingent, of course, upon a favorable outcome.3 19 See Dkt. No. 22-1. Plaintiff was ultimately awarded back payments. By contract, 20 Counsel is entitled to up to 25 percent of the amount of those back payments but is 21 seeking slightly less than the full 25 percent. Voluntarily requesting less than the 22 allowable 25 percent is a factor in the reasonableness analysis. See Crawford, 586 23 F.3d at 1152 (considering that counsel had voluntarily reduced the fees from the 24 allowable 25 percent in analyzing whether the attorney enjoyed a “windfall”); Wenzel 25 v. Colvin, No. EDCV 11-0338-JEM, 2014 WL 3810247, at *3 (C.D. Cal. Aug. 1, 26 27 3 In contracting with Plaintiff on a contingency basis, Counsel assumed the risk of nonpayment, and would receive the 25-percent fee only if Plaintiff received benefits 28 by a decision of the Social Security Administration or by judgment of this Court.

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1 2014) (“Taking less than the full 25% recovery obviously makes the high de facto 2 hourly rates more reasonable.”). 3 Second, the Court recognizes that Counsel obtained a favorable result for 4 Plaintiff, i.e., a stipulated remand to the Commissioner for further administrative 5 proceedings, and an ultimate award of retroactive benefits. 6 Third, neither the Commissioner nor Plaintiff alleges that Counsel was 7 responsible for any delays, or that the quality of representation was substandard. See 8 Gisbrecht, 535 U.S. at 808 (holding that a reduction of fees may be appropriate if 9 there were any delays or if the representation was substandard). 10 Fourth, Plaintiff has been served with a copy of the Motion, Mot. at 2, 16, as 11 well as the Court’s August 1, 2022 Order, providing instructions on how Plaintiff can 12 object to the instant Motion, see Dkt. No. 23. Plaintiff has not filed any objections 13 or other comments or otherwise communicated with the Court. 14 B. EAJA Fees 15 An attorney must refund to the client EAJA fees received when the § 406(b) 16 award exceeds the EAJA fees. See Gisbrecht, 535 U.S. at 796. Here, Counsel 17 received $1,000.00 in EAJA fees and will be awarded $10,000.00 in § 406(b) fees. 18 Since Counsel will receive a § 406(b) fee larger than the EAJA fees, Counsel must 19 reimburse the full EAJA fees to Plaintiff. 20 III. CONCLUSION 21 Consistent with the foregoing, IT IS ORDERED that Counsel’s Motion for 22 Attorney’s Fees in the amount of $10,000.00 is GRANTED. IT IS FURTHER 23 ORDERED that Counsel shall reimburse Plaintiff the amount of $1,000.00 for EAJA 24 fees previously paid by the Commissioner. 25 26 DATED: November 7, 2022 /s/ 27

ROZELLA A. OLIVER

28 UNITED STATES MAGISTRATE JUDGE

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