1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MARGARET ELIZABETH TINOCO, Case No. 1:21-cv-00278-CBD

12 Plaintiff, ORDER GRANTING MOTION FOR

AUTHORIZATION OF ATTORNEY’S FEES

13 v. PURSUANT TO 42 U.S.C. § 406(b) 14 COMMISSIONER OF SOCIAL (Doc. 25) 15 SECURITY,

16 Defendant. 17 18 Pending before the Court is the motion of Jonathan O. Peña (“Counsel”) of Peña & 19 Bromberg, PC, attorney for Margaret Elizabeth Tinoco (“Plaintiff”), for authorization of 20 attorney’s fees pursuant to 42 U.S.C. § 406(b), filed August 16, 2023, and the response of the 21 Commissioner of Social Security (“Defendant” or “the Commissioner”). (Docs. 25, 27). For the 22 reasons set forth below, the motion will be granted.1 23 Background 24 On February 17, 2021, Plaintiff and Counsel entered into a contingency fee agreement. 25 (Doc. 25-2). The parties agreed to a attorney’s fee equal to 25% of the past-due benefits awarded, 26 pursuant to 42 U.S.C. § 406(b), less any fees received under the Equal Access to Justice Act 27

1 Both parties consented to the jurisdiction of a magistrate judge for all proceedings in this 1 (“EAJA”). Id. On February 26, 2021, Plaintiff brought this action seeking judicial review of a 2 final administrative decision denying Plaintiff’s claim for disability insurance benefits and 3 supplemental security income under the Social Security Act. (Doc. 1). On September 8, 2021, 4 Plaintiff filed a motion for summary judgment. (Doc. 11). Plaintiff argued:

5 (1) the administrative law judge (“ALJ”) erred by failing to provide “clear and convincing” reasons for rejecting Ms. Tinoco’s TGA/TND symptomology 6 evidence, and (2) the residual functional capacity (“RFC”) for “medium” work is 7 not supported by Substantial Evidence.

8 Id. On November 29, 2021, the Court granted the parties’ stipulation to voluntary remand 9 pursuant to sentence four of 42 U.S.C. § 405(g). (Docs. 15, 19). The Court entered judgment in 10 favor of Plaintiff and against Defendant. (Doc. 20). The Court entered an order awarding 11 $7,500.00 for attorney’s fees under the Equal Access Justice Act (“EAJA”) on March 3, 2022. 12 (Docs. 21, 24). 13 On remand, the Commissioner found Plaintiff has been disabled since November 27, 2017. 14 (Doc. 25-1 at 2). Plaintiff was awarded $132,554.00 in retroactive benefits. (Id. at 3). The 15 Commissioner withheld $33,138.50 in Plaintiff’s retroactive benefits to pay his appointed 16 representative. (Id.). 17 On August 16, 2023, Counsel filed the instant motion. (Doc. 25). Plaintiff was served 18 with the motion and advised he had 14 days to object. Id. at 1; (Doc. 26). Plaintiff has not filed 19 an objection or any other response. On August 18, 2023, the Commissioner of Social Security 20 (“Defendant”) filed a response to Plaintiff’s motion. (Doc. 27). Defendant summarized the 21 applicable law but took no position on the reasonableness of the fee request. Id. 22 Standard of Review 23 42 U.S.C.§ 406(b) provides in relevant part: 24 Whenever a court renders a judgment favorable to a claimant under this subchapter 25 who was represented before the court by an attorney, the court may determine and allow as part of its judgment a reasonable fee for such representation, not in excess 26 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 27 the amount of such fee for payment to such attorney out of, and not in addition to, the amount of such past-due benefits. In case of any such judgment, no other fee may be payable or certified for payment for such representation except as provided 1 42 U.S.C.§ 406(b)(1)(A). The Commissioner typically does not act as an adversary, but “plays a 2 part in the fee determination resembling that of a trustee for the claimants.” Gisbrecht v. 3 Barnhart, 535 U.S. 789, 798 n.6 (2002). Thus, “[b]ecause the [Commissioner] has no direct 4 interest in how much of the award goes to a counsel and how much to the disabled person, the 5 district court has an affirmative duty to assure that the reasonableness of the fee is established.” 6 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009); see Gisbrecht, 535 U.S. at 807-08 & 7 n.17 (the 25% statutory maximum fee is not an automatic entitlement, and the court must ensure 8 that the fee requested is reasonable). 9 When weighing the adequacy of a requested attorney’s fees, the Court should respect “the 10 primacy of lawful attorney-client fee agreements.” Id. at 793. However, counsel still bears the 11 burden of proving the requested fees are reasonable. Id. In determining reasonableness, the court 12 may consider the experience of the attorney, the results achieved, and whether there is evidence 13 the attorney artificially increased the hours worked or the hourly rate charged. Id. at 807-08; 14 Crawford, 586 F.3d at 1151. Further, any 406(b) award is offset by attorney fees granted under 15 the EAJA. Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1219 (9th Cir. 2012). 16 Discussion 17 Here, Plaintiff was represented by experienced counsel and achieved a favorable result, 18 namely a remand on the merits of his brief, and ultimately a substantial award of past-due 19 benefits. (Docs. 11, 19-20, 25). The undersigned has reviewed the docket in this matter and 20 concludes there is no indication that Counsel engaged in dilatory conduct, excessive delay, or 21 substandard performance. See (Docs. 25, 25-3). 22 Counsel’s itemized bill reflects 46 hours spent on tasks such as reviewing the 23 administrative transcript and pursuing the case to judgment, a reasonable amount of time for 24 performance of those tasks. (Doc. 25-3).2 Counsel requests $33,138.50 in fees, resulting in an 25 hourly rate of $720.40. Counsel argues this is considerably less than what other courts have 26 found reasonable in recent years. See (Doc. 31 at 5-6) (citing cases). The Ninth Circuit has found 27

2 Counsel’s itemized list states the total hours worked was 47. (Doc. 25-3). Counsel’s 1 | higher hourly rates reasonable in social security contingency fee arrangements. Crawford, 586 2 | F.3d at 1153 (explaining that the majority opinion found reasonable effective hourly rates 3 |} equaling $519.00, $875.00, and $902.00) (J. Clifton, concurring in part and dissenting in part). 4 | Even at this higher rate, the amount requested cannot be said to amount to a windfall to □□□□□□□□□□□ 5 | counsel. Id. See Smith v. Kijakazi, No. 1:13-cv-01717-BAK (SKO), 2022 WL 1471035, at *2 6 | (E.D. Cal. May 10, 2022) (collecting cases finding that similar amounts in attorneys’ fees 7 | requested were appropriate). Based on the foregoing, the Court finds the request for fees in the 8 | amount of $33,138.50 is reasonable. Gisbrecht, 535 U.S. at 807-08. 9 An award of § 406(b) fees, however, must be offset by any prior award of attorney’s fees 10 granted under the EAJA. 28 U.S.C. § 2412; Gisbrecht, 535 U.S. at 796. As Plaintiff was 11 | previously awarded $7,500.00 in fees pursuant to the EAJA, Counsel shall refund this amount to 12 | Plaintiff. 13 | Conclusion and Order 14 Accordingly, it is HEREBY ORDERED 15 1. Counsel for Plaintiff's motion for authorization of attorney’s fees pursuant to 42 16 U.S.C. § 406(b) (Doc. 25) is GRANTED; and 17 2. Counsel shall be awarded attorneys’ fees in the amount of Thirty-Three Thousand 18 One-Hundred Thirty-Eight Dollars and Fifty Cents ($33,138.50); and 19 3. Upon receipt of the full attorney’s fees, pursuant to 42 U.S.C. § 406(b), Plaintiffs 20 counsel shall reimburse Plaintiff the full amount of the EAJA fee, Seven Thousand 21 Five-Hundred Dollars ($7,500.00), previously awarded. 22 IT IS SO ORDERED. 23 Dated: September 1, 2023 | Vv Vv □ 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 28