Ditter v. Kijakazi

1
21cv1568-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
DEBORAH D.,1
Plaintiff,
v.
FRANK BISIGNANO, Commissioner of the
Social Security Administration,2
Defendant.
Case No.: 21cv1568-MSB
ORDER GRANTING MOTION FOR
ATTORNEY’S FEES PURSUANT TO
42 U.S.C. § 406(b) [ECF NO. 22]
On February 21, 2025, Martha Yancey (“Petitioner”), counsel for Plaintiff Deborah
D. (“Plaintiff”), filed a Motion for Attorney’s Fees Pursuant to 42 U.S.C. § 406(b),
requesting that the Court award attorney’s fees in the amount of $29,847.25 (ECF No.
22 (“Motion”).) For the reasons set forth below, the Court GRANTS the Motion.
1 Under Civil Local Rule 7.1(e)(6)(b), “[o]pinions by the Court in [Social Security cases under 42 U.S.C. §
405(g)] will refer to any non-government parties by using only their first name and last initial.”
2 In May 2025, Frank Bisignano was sworn in as Commissioner of the Social Security Administration.
See https://www.ssa.gov/agency/commissioner.html (last visited Jan. 26, 2026). Accordingly, Frank
Bisignano is substituted as the defendant in this lawsuit. See Fed. R. Civ. P. 25(d) (“An action does not
abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to
hold office while the action is pending. The officer’s successor is automatically substituted as a
party.”).
Case 3:21-cv-01568-MSB Document 25 Filed 01/26/26 PageID.<pageID> Page 1
of 6

2
21cv1568-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
I. 	BACKGROUND
On September 3, 2021, Plaintiff initiated the instant civil action against the
Commissioner of Social Security (“the Commissioner”), pursuant to 42 U.S.C. § 405(g),
seeking judicial review of the Commissioner’s decision to deny Plaintiff’s application for
disability insurance benefits. (ECF No. 1.) On March 28, 2022, the Commissioner filed
the Administrative Record. (ECF No. 8.) On August 16, 2022, the parties filed a Joint
Motion for Summary Judgment, in which Plaintiff asked the Court to reverse the
Commissioner’s decision and either award her benefits or remand the action to the
Social Security Administration (“SSA”) for further administrative proceedings pursuant
to 42 U.S.C. § 405(g). (ECF No. 14). On March 15, 2023, the Court reversed the
Commissioner’s decision and remanded the action to the SSA for further administrative
proceedings. (ECF No. 18.)
On April 19, 2023, the parties filed a Joint Motion for the Award of Attorney’s
Fees Pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d). (ECF No.
20.) That same day, the Court granted the Joint Motion and awarded attorney’s fees in
the amount of $9,000.00. (ECF No. 21.)
On February 21, 2025, Petitioner filed the instant Motion, seeking attorney’s fees
in the amount of $29,847.25, pursuant to 42 U.S.C. § 406(b) (“Section 406(b)”). (ECF No.
22.) In support of the Motion, Petitioner explains that Plaintiff prevailed on remand to
the SSA, and the SSA awarded Plaintiff $119,389.00 in total past-due benefits. (Id. at 4.)
Petitioner contends that an award of $29,847.25 is reasonable given “Plaintiff’s case
was not a run-of-the-mill Social Security [] case; Plaintiff’s case was fact-driven and
required a thorough analysis of the [Administrative] Record.” (Id.) However, Petitioner
acknowledges that Plaintiff is owed a credit of $9,000.00 for the fees that were
previously awarded by this Court under the EAJA. (See id. at 5; see also ECF No. 21.)
On February 24, 2025, the Court issued a briefing schedule in which the Court
notified Plaintiff of her right to oppose the Motion and provided a simultaneous
deadline for Plaintiff and the Commissioner to respond to the Motion. (ECF No. 23 at 1–
Case 3:21-cv-01568-MSB Document 25 Filed 01/26/26 PageID.<pageID> Page 2
of 6

3
21cv1568-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2.) Plaintiff did not respond. (See generally Dkt.) On February 27, 2025, the
Commissioner responded that “the Commissioner neither supports nor opposes
[Petitioner]’s request for attorney’s fees under 42 U.S.C. § 406(b)” but requested that
the Court direct Petitioner to reimburse any fees previously received under the EAJA to
Plaintiff. (ECF No. 24 at 3.)
II. 	LEGAL STANDARD
Under the Social Security Act, a court that has rendered a judgment in favor of a
Social Security claimant who was represented by an attorney may award attorney’s fees
in a “reasonable” amount, not to exceed twenty-five percent3 of the total past-due
benefits awarded to the claimant. See 42 U.S.C. § 406(b)(1)(A); see also Crawford v.
Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009). District courts have an affirmative duty to
ensure that the attorney’s fees sought are “reasonable.” Id. at 1149. The United States
Supreme Court has explained:
[Section] 406(b) does not displace contingent-fee agreements as the
primary means by which fees are set for successfully representing Social
Security benefits claimants in court. Rather, [Section] 406(b) calls for court
review of such arrangements as an independent check, to assure that they
yield reasonable results in particular cases. Congress has provided one
boundary line: Agreements are unenforceable to the extent that they
provide for fees exceeding [twenty-five] percent of the past-due benefits
. . . Within the [twenty-five] percent boundary . . . the attorney for the
successful claimant must show that the fee sought is reasonable for the
services rendered.
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002) (emphasis added). When evaluating the
reasonableness of attorney’s fees under Section 406(b), the court should consider the
3 The Court notes that the twenty-five percent cap set forth in Section 406(b) applies only to fees for
representation before a federal court and not to aggregate fees awarded for representation before
both a federal court and the SSA. See Culbertson v. Berryhill, 586 U.S. 53, 59 (2019); see also Ricardo
A. v. Saul, No. 3:19-cv-00846-AHG, 2021 U.S. Dist. LEXIS 34644, at *7 n.3 (S.D. Cal. Feb. 24, 2021)
(“[T]he [twenty-five percent] cap set forth in Section 406(b)(1)(A) applies solely to attorney[’s] fees for
representation in federal court.”).
Case 3:21-cv-01568-MSB Document 25 Filed 01/26/26 PageID.<pageID> Page 3
of 6

4
21cv1568-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
character of the representation and the results achieved. Id. at 808; Crawford, 586 F.3d
at 1151.
After reviewing the contingent-fee agreement, the court should consider
reductions based on the following factors: (1) whether the attorney’s performance was
substandard, (2) whether the attorney engaged in dilatory conduct, and (3) whether the
requested fees are excessively large in relation to the benefits achieved, i.e., whether
the attorney would receive a “windfall.” Crawford, 586 F.3d at 1150–52. With respect
to the third factor, the Ninth Circuit has noted that attorneys assume significant risk in
accepting Social Security cases, including the risk that no benefits will be awarded or
that there will be a long court or administrative delay in resolving the case. Id. at 1152.
In Social Security cases, attorney’s fees are paid by the claimant out of the past-
due benefits awarded; the losing party is not responsible for payment. Id. at 1147
(citing Gisbrecht, 535 U.S. at 802). Attorneys in such cases are permitted to seek
recovery under both the EAJA and Section 406(b), but the attorney must refund the
amount of the smaller fee to the claimant. See Gisbrecht, 535 U.S. at 796; see also
Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1218 (9th Cir. 2012).
III. 	DISCUSSION
The contingency-fee agreement between Plaintiff and Petitioner provides that
Petitioner is to receive twenty-five percent of Plaintiff’s past-due benefits upon a
successful federal appeal. (See ECF No. 22-2 at 1–2.) On remand, the Commissioner
awarded Plaintiff $119,389.00 in total past-due benefits. (See ECF No. 22 at 4; see also
ECF No. 22-1.) Petitioner seeks attorney’s fees in the amount of $29,847.25. (ECF No.
22 at 4.) This figure represents twenty-five percent of the total past-due benefits
awarded to Plaintiff. (Id.) Accordingly, the attorney’s fees sought are within the twenty-
five percent statutory ceiling. See 42 U.S.C. § 406(b)(1)(A). Therefore, the Court will
consider the character of the representation and the results achieved to determine
/ /
Case 3:21-cv-01568-MSB Document 25 Filed 01/26/26 PageID.<pageID> Page 4
of 6

5
21cv1568-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
whether the fee is reasonable. See Gisbrecht, 535 U.S. at 808; see also Crawford, 586
F.3d at 1151.
As to the first and second factors, the Court finds that no reduction of fees due to
substandard performance or dilatory conduct is warranted. See Crawford, 586 F.3d at
1151. Petitioner spent a total of 46.8 hours on Plaintiff’s case and filed persuasive
opening and reply briefs, as well as a pre-briefing settlement proposal. (ECF No. 22 at
4.) Petitioner’s efforts ultimately resulted in a favorable decision for Plaintiff on
remand, including an award of past-due benefits. (Id.) Petitioner notes that she has
been practicing law for twenty-one years, she is a member of two state bar associations,
she was the sole attorney representing Plaintiff before this Court, and she did not delay
the case. (Id.) Petitioner also attached a detailed billing statement which indicates that
she expeditiously reviewed the case, conducted legal research, and achieved positive
results within a reasonable time frame. (See ECF No. 22-4.) Thus, there is no evidence
of substandard performance or dilatory conduct.
As to the third factor, the Court finds that the attorney’s fees sought are not
excessively large in relation to the benefits achieved. See Crawford, 586 F.3d at 1151–
1152. Petitioner spent a total of 46.8 hours on this case at a rate of approximately
$637.00 per hour. (ECF No. 22-4.) Petitioner’s rate is well within the range that this
Court has found to be appropriate. See, e.g., Roland S. v. Kijakazi, No. 20-cv-01068-AHG,
2023 U.S. Dist. LEXIS 189176, at *9 (S.D. Cal. Oct. 20, 2023) (finding an effective hourly
rate of $1,438.35 reasonable); Watkins v. O’Malley, No. 21-cv-101-BLM, 2024 U.S. Dist.
LEXIS 93524, at *6 (S.D. Cal. May 24, 2024) (finding an effective hourly rate of $1,566.00
reasonable); Reddick v. Berryhill, No. 16-cv-29-BTM-BLM, 2019 U.S. Dist. LEXIS 91736, at
*5 (S.D. Cal. May 30, 2019) (finding an effective hourly rate of $1,990.00 reasonable on
reconsideration). Therefore, there is nothing in the record to suggest Petitioner delayed
this litigation to amass more in potential fees or otherwise offered substandard
performance.
/ /
Case 3:21-cv-01568-MSB Document 25 Filed 01/26/26 PageID.<pageID> Page 5
of 6

6
21cv1568-MSB
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
In further support of its finding, the Court acknowledges that Petitioner assumed
a substantial risk of non-payment by agreeing to be paid on a contingency basis.
“[C]ourts recognize that basing a reasonableness determination on a simple hourly rate
basis is inappropriate when an attorney is working pursuant to a reasonable
contingency contract for which there runs a substantial risk of loss . . . .” Ayersman v.
Berryhill, No. 17-cv-1121-WQH-JMA, 2021 U.S. Dist. LEXIS 1253, at *6 (S.D. Cal. Jan. 4,
2021) (citations omitted); Moreno v. Berryhill, No. CV 13-8492-PLA, 2018 U.S. Dist. LEXIS
121060, at *10 (C.D. Cal. July 19, 2018) (noting that “[c]ounsel assumed the risk of
nonpayment inherent in a contingency agreement”). Here, Petitioner assumed a
substantial risk of non-payment by agreeing to be paid on a contingency basis, and
Petitioner’s work ultimately resulted in a highly favorable result for Plaintiff, who raises
no opposition. (See generally Dkt.) The Court thus concludes that Petitioner’s request
for attorney’s fees in the amount of $29,847.25 is reasonable.
Critically, while attorneys are permitted to seek fees under both the EAJA and
Section 406(b), they must refund the smaller fee to the claimant. Gisbrecht, 535 U.S. at
796. Accordingly, Petitioner must refund to Plaintiff the $9,000.00 in fees previously
awarded by this Court under the EAJA. (See ECF No. 21.)
IV. 	CONCLUSION
For the foregoing reasons, the Court GRANTS the Motion and AWARDS attorney’s
fees to Petitioner in the amount of $29,847.25. The Court ORDERS Petitioner to
reimburse Plaintiff in the amount of $9,000 for the fees previously awarded by this
Court under the EAJA. (See id.)
IT IS SO ORDERED.
Dated: January 26, 2026
Case 3:21-cv-01568-MSB Document 25 Filed 01/26/26 PageID.<pageID> Page 6
of 6