Manuel v. Commissioner of Social Security

1 3:22-cv-00109-AHG
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
STELLA M.,
Plaintiff,
v.
FRANK BISIGNANO, Commissioner of
Social Security,
Defendant.
Case No.: 3:22-cv-00109-AHG
ORDER GRANTING PLAINTIFF’S
COUNSEL’S MOTION FOR
ATTORNEY FEES PURSUANT TO
42 U.S.C. § 406(b)
[ECF No. 34]
Before the Court is Plaintiff’s counsel’s amended motion for attorney fees pursuant
to 42 U.S.C. § 406(b). ECF No. 34. For the reasons set forth below, the Court GRANTS
the motion.
I. BACKGROUND
Plaintiff Stella M. (“Plaintiff”) filed this action on January 27, 2022, seeking review
of the Commissioner of Social Security’s (“Commissioner” or “Defendant”) denial of her
application for social security disability and supplemental security income benefits. ECF
No. 1. The parties consented to proceed before a Magistrate Judge. ECF Nos. 16, 19, 21.
The administrative record was filed on August 30, 2022. ECF No. 22. The Court set a
Case 3:22-cv-00109-AHG Document 41 Filed 01/13/26 PageID.<pageID> Page 1
of 7

2 3:22-cv-00109-AHG
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
scheduling order, requiring that a Joint Status Report regarding settlement discussions be
filed by October 28, 2022, and a Joint Motion for Judicial Review of Final Decision of the
Commissioner of Social Security be filed by January 27, 2023. ECF No. 23. On
January 3, 2023, the parties filed a Joint Motion to Remand to Social Security
Administration. ECF No. 26. On January 3, 2023, the Court granted the motion and
remanded the matter back to the Commissioner for further administrative proceedings
pursuant to Sentence Four of 42 U.S.C. § 405(g). ECF No. 27. A Clerk’s Judgment was
entered the same day. ECF No. 28. On remand, the Commissioner awarded Plaintiff
$92,496.00 in total past due benefits. ECF No. 34-1 at 2; ECF No. 34-3. On April 27, 2023,
the Court awarded Plaintiff $5,582.45 in attorney fees under the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412(d). ECF No. 32.
In the instant motion, Plaintiff’s counsel seeks an order awarding Olinsky Law
Group1 (Plaintiff’s counsel) attorney fees in the amount of $13,924.00 for representing
Plaintiff in this action, offset by the $5,582.45 in EAJA fees awarded by the Court, for a
net award of $8,341.55. ECF No. 34-1 at 2–3; see id. at 3 (“Petitioner asks this Court to
authorize and award 406(b) attorney’s fees of $13,924.00. Upon receipt of payment,
Plaintiff’s counsel shall refund the EAJA award in the amount of $5,582.45 to [Plaintiff]”).
Plaintiff did not oppose her counsel’s request. The Commissioner has taken no position on
the reasonableness of counsel’s request. ECF No. 40 at 3 (“The Commissioner has given
substantive consideration to the merits of the Motion for § 406(b) fees and found no basis
to object. … the Commissioner neither supports nor opposes Counsel’s request for
attorney[] fees”).
1 The Court notes that the attorney who filed the instant motion, Melissa A. Palmer, is not
listed as an attorney who worked on this matter via the detailed time records submitted.
ECF Nos. 34-4, 34-5. Instead, Stuart Barasch, Howard Olinsky, Alex Hobaica,
Christopher Milliman, and Daniel Brady were the attorneys who handled the case. Id.
Hence, instead of the award being addressed to Ms. Palmer, counsel instead requests the
check be made payable to “Olinsky Law Group.” ECF No. 34-1 at 4.
Case 3:22-cv-00109-AHG Document 41 Filed 01/13/26 PageID.<pageID> Page 2
of 7

3 3:22-cv-00109-AHG
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
II. LEGAL STANDARD
“Under 42 U.S.C. § 406(b), a court entering judgment in favor of [a social security]
claimant who was represented by an attorney ‘may determine and allow as part of its
judgment a reasonable fee for such representation, not in excess of 25 percent of the total
of the past-due benefits to which the claimant is entitled by reason of such judgment.’”
Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009) (en banc) (quoting 42 U.S.C.
§ 406(b)(1)(A)). “Within the 25 percent boundary, . . . the attorney for the successful
claimant must show that the fee sought is reasonable2 for the services rendered.” Gisbrecht
v. Barnhart, 535 U.S. 789, 807 (2002).
“[A] district court charged with determining a reasonable fee award under
§ 406(b)(1)(A) must respect ‘the primacy of lawful attorney-client fee agreements,’ . . .
‘looking first to the contingent-fee agreement, then testing it for reasonableness[.]’”
Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793, 808). When determining
reasonableness of the fee award, courts must consider “whether the amount need be
reduced, not whether the loadstar amount should be enhanced.” Crawford, 586 F.3d at
1149. While there is not a definitive list of factors, courts should consider “the character of
the representation and the results the representative achieved.” Gisbrecht, 535 U.S. at 808.
/ /
2 The Court notes that the lodestar calculation does not apply to the instant motion. See
Gisbrecht, 535 U.S. at 802 (explaining that the lodestar method is applicable to “disputes
over the amount of fees properly shifted to the loser in the litigation” whereas “Section
406(b) is of another genre: [i]t authorizes fees payable from the successful party’s
recovery”); see also Crawford, 586 F.3d at 1148 (“SSDI attorney[] fees, in contrast, are
not shifted. They are paid from the award of past-due benefits and the amount of the fee,
up to 25% of past-due benefits, is based on the agreement between the attorney and the
client.”); see, e.g., Shultz v. Comm’r of Soc. Sec., No. 17cv1823-CAB-MDD, 2020 U.S.
Dist. LEXIS 147006, at *3–*4 (S.D. Cal. Aug. 14, 2020) (not applying the lodestar
calculation, when the motion was not opposed by the Commissioner or plaintiff); Berry v.
Saul, No. 16cv1700-MMA-AGS, 2019 WL 6467807 at *2 n.2 (S.D. Cal. Dec. 2, 2019)
(same).
Case 3:22-cv-00109-AHG Document 41 Filed 01/13/26 PageID.<pageID> Page 3
of 7

4 3:22-cv-00109-AHG
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
“The court may properly reduce the fee for substandard performance, delay, or benefits
that are not in proportion to the time spent on the case.” Crawford, 586 F.3d at 1151.
Finally, “an EAJA award offsets an award under Section 406(b), so that the [amount
of the total past-due benefits the claimant actually receives] will be increased by the …
EAJA award up to the point the claimant receives 100 percent of the past-due benefits.”
Gisbrecht, 535 U.S. at 796.
III. DISCUSSION
On January 21, 2022, Plaintiff and Olinsky Law Group entered into a Social Security
Appeal Federal Court Fee Agreement (“Agreement”). ECF No. 34-2. Pursuant to the
Agreement, Plaintiff agreed to pay counsel a contingency-fee of up to 25% of past-due
benefits awarded by the Commissioner. Id.3 The administrative proceedings became final
on September 16, 2025, when the Social Security Administration issued its Notice of
Award. See ECF No. 34-3 at 1. Plaintiff’s counsel seeks a total award of $13,924.00 in
attorney fees and bases this fee on 25% of the net payable past due benefits, after the
$9,200.00 awarded to the hearing level representative is subtracted. ECF No. 34-1 at 2.4
Counsel suggests that the amount sought in the instant motion is reasonable considering
the services expended and results achieved. Id. at 2 (“Petitioner’s win of a remand hearing
from this Court has resulted in a finding establishing that Plaintiff is disabled, and therefore
eligible for benefits”). Additionally, if granted by the Court, this award would then be
further reduced by the $5,582.45 that has already been received in attorney fees under the
EAJA. Id. at 3.
/ /
3 As an initial matter, the Court notes that the contingency fee agreement between Plaintiff
and his counsel is within the statutory ceiling. Compare 42 U.S.C. § 406(b)(1)(A) with
ECF No. 34-2.
4 Twenty-five percent of $92,496.00 is $23,124.00. The hearing level representative
received $9,200.00; and $23,124.00 minus $9,200.00 equals $13,924.00.
Case 3:22-cv-00109-AHG Document 41 Filed 01/13/26 PageID.<pageID> Page 4
of 7

5 3:22-cv-00109-AHG
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
Upon careful review of the documents submitted, and the applicable law, the Court
finds that counsel’s fee request is reasonable. Plaintiff’s counsel and paralegal expended
27.8 hours on this case, which the Court reduced to 26.1 hours.5 Id. at 3; see ECF No. 32
at 9. The de facto hourly rate is $630.28,6 which falls on the low end of the range that has
been approved by courts in similar cases, including in this district. See Crawford, 586 F.3d
at 1153 (approving de facto hourly rates of $519, $875, and $902 in 2009); Patrick S., 2025
WL 642012, at *2 (approving de facto hourly rate of $770.35); Sergio C., 2023 WL
4240715, at *2 (approving de facto hourly rate of $681.66); Reddick v. Berryhill, No.
16cv29-BTM-BLM, 2019 WL 1112080, at *2–*3 (S.D. Cal. Mar. 11, 2019) (collecting
cases and approving de facto hourly rate of $1,080.26); Kikkert v. Berryhill, No. 14cv1725-
MMA-JMA, 2018 WL 3617268, at *2 (S.D. Cal. July 30, 2018) (approving de facto hourly
5 While every case is different, the amount of time spent on this case—27.8 hours,
comprised of 21.4 hours of attorney work and 6.4 hours of paralegal work—is similar to
other cases. See Patrick S. v. Dudek, No. 23-cv-480-AHG, 2025 WL 642012, at *2 (S.D.
Cal. Feb. 26, 2025) (finding that 24.97 hours billed by plaintiff’s counsel and 3.7 hours
billed by a paralegal a reasonable number of hours); Sergio C. v. Kijakazi, No. 20-cv-2270-
AHG, 2023 WL 4240715, at *2 (S.D. Cal. June 27, 2023) (finding that 20.59 hours billed
by plaintiff’s counsel and 8.75 hours billed by a paralegal a reasonable number of hours);
Krebs v. Berryhill, No. 16-cv-3096-JLS-BGS, 2018 WL 3064346, at *2 (S.D. Cal. June
21, 2018) (finding that 21.7 hours billed by plaintiff’s counsel and 3.5 hours billed by a
paralegal a reasonable number of hours); see also Costa v. Comm’r of Soc. Sec., 690 F.3d
1132, 1136 (9th Cir. 2012) (noting “[m]any district courts have noted that twenty to forty
hours is the range most often requested and granted in social security cases”). However,
the Court notes that it has already ruled, in its order on the EAJA fee request, that the 21.4
hours of attorney work and 6.4 hours of paralegal work in this case were not reasonable.
ECF No. 32 at 4–6 (deducting 0.3 hours of clerical attorney work, 0.7 hours of clerical
paralegal work, and 0.7 hours of duplicative paralegal work). As stated in its prior Order,
the Court finds that 21.1 hours of attorney time and 5 hours of paralegal time were
reasonable in this matter. Id. at 4–6, 9. The Court will therefore analyze the instant fee
request using these reduced figures instead.
6 Here, the de facto hourly rate is calculated by subtracting the paralegal fee ($125.00 x
5 hours = $625.00) from the total $13,924.00 fee requested ($13,924.00 – $625.00 =
$13,299.00), and dividing by 21.1 hours of attorney time.
Case 3:22-cv-00109-AHG Document 41 Filed 01/13/26 PageID.<pageID> Page 5
of 7

6 3:22-cv-00109-AHG
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
rate of $943.55); Likens v. Colvin, No. 11-cv-0407-LAB-BGS, 2014 WL 6810657, at *2
(S.D. Cal. Dec. 2, 2014) (approving de facto hourly rate of $666.68).
Moreover, “the Court finds that Plaintiff’s counsel assumed a substantial risk of not
recovering attorney[] fees. At the time that Plaintiff and h[er] counsel signed the
contingency fee agreement, Plaintiff had an unfavorable ruling from the ALJ and had just
filed this action for judicial review.” Shultz, 2020 U.S. Dist. LEXIS 147006, at *5–6; see
also Moreno v. Berryhill, No. 13-cv-8492-PLA, 2018 WL 3490777, at *3 (C.D. Cal. July
19, 2018) (“[c]ounsel assumed the risk of nonpayment inherent in a contingency
agreement, [and] the fee does not exceed … the 25 percent statutory cap[.]”).
Plaintiff’s counsel has also submitted a billing statement detailing the work
performed to litigate this case in federal court. ECF Nos. 34-4, 34-5, 34-6. There is nothing
in the record to suggest substandard performance by counsel, or that counsel delayed this
litigation in order to amass more in potential fees. As a result of counsel’s work, Plaintiff
received a favorable outcome and a significant award of past-due benefits. Thus, none of
the factors outlined in Gisbrecht favor reducing the fee award, and the Court concludes
that counsel’s request for attorney fees is reasonable and that it does not constitute a
“windfall” to Plaintiff’s counsel. See Gisbrecht, 535 U.S. at 808.
IV. CONCLUSION
For the reasons set forth above, the Court GRANTS Plaintiff’s counsel’s motion for
attorney fees pursuant to 42 U.S.C. §406(b). ECF No. 34. The Court AWARDS Olinsky
Law Group § 406(b) attorney fees in the amount of $13,924.00.
As discussed above, Olinsky Law Group previously received an EAJA fee award of
$5,582.45, (see ECF No. 32), and “an EAJA award offsets an award under Section 406(b),
so that the amount of the total past-due benefits the claimant actually receives will be
increased by the EAJA award up to the point the claimant receives 100 percent of the past-
due benefits.” Gisbrecht, 535 U.S. at 796 (internal alterations omitted). Accordingly, the
Commissioner is DIRECTED to certify payment of a fee award of $13,924.00, made
payable to the Olinsky Law Group, and delivered to Olinsky Law Group, 250 S. Clinton
Case 3:22-cv-00109-AHG Document 41 Filed 01/13/26 PageID.<pageID> Page 6
of 7

7 3:22-cv-00109-AHG
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
St., Ste 210, Syracuse, NY 13202, out of Plaintiff’s past-due benefits in accordance with
agency policy. The Court further ORDERS Plaintiff’s counsel to refund Plaintiff
$5,582.45 as an offset for the EAJA fees previously awarded.
IT IS SO ORDERED.
Dated: January 13, 2026
Case 3:22-cv-00109-AHG Document 41 Filed 01/13/26 PageID.<pageID> Page 7
of 7