1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ERIK WILLIAM H., Case No. 16-cv-07383-DMR

8 Plaintiff,

ORDER GRANTING SECOND

9 v. MOTION FOR ATTORNEYS' FEES

10 CAROLYN W. COLVIN, Re: Dkt. No. 43 11 Defendant.

12 Plaintiff Erik William H. filed a complaint seeking to reverse the Commissioner of the 13 Social Security Administration’s administrative decision to deny his application for benefits under 14 the Social Security Act, 42 U.S.C. § 401 et seq. The court denied Plaintiff’s motion for summary 15 judgment, and Plaintiff appealed the decision to the Ninth Circuit Court of Appeals. The Ninth 16 Circuit reversed the Administrative Law Judge’s (“ALJ”) decision and remanded the matter with 17 instructions to award benefits. Plaintiff’s counsel Josephine M. Gerrard now moves for an award 18 of attorneys’ fees under 42 U.S.C. § 406(b). [Docket No. 43 (“Mot.”).] The Commissioner filed a 19 response. [Docket No. 44 (“Resp.”).] This matter is suitable for resolution without a hearing. 20 Civ. L.R. 7-1(b). For the following reasons, the motion is granted. 21 I. BACKGROUND 22 The facts of this case were set out in the court’s previous order. [Docket No. 42.] On 23 October 18, 2023, the Social Security Administration issued a Notice of Award for auxiliary 24 benefits finding that Plaintiff was due $89,436 in total past-due benefits as auxiliary benefits. 25 Mot. at 2, Ex. A (Notice re: Benefits). The retainer agreement between Plaintiff and counsel 26 permits Gerrard to request an attorneys’ fees award of up to 25% of any past-due benefits 27 awarded. Mot. at 2, Ex. B (Retainer Agreement). Gerrard is requesting an award of attorneys’ 1 auxiliary benefits. Mot. at 2. As the Commissioner points out, Plaintiff’s counsel was already 2 ordered to refund Plaintiff $19,000.00 for the Equal Access to Justice Act (“EAJA”) fees this court 3 previously approved. Resp. 4. No further refund is required. 4 Gerrard served a copy of the motion on Plaintiff on August 10, 2024. [Docket No. 49 5 (Proof of Service).] No objections have been filed. [See Docket No. 48 (setting August 30, 2024 6 deadline for objections to fee motion).] 7 II. LEGAL STANDARD 8 Under the Social Security Act, an attorney who successfully represents a claimant before a 9 court may seek an award of attorneys’ fees not to exceed 25 percent of any past-due benefits 10 eventually awarded. 42 U.S.C. § 406(b). While contingency fee agreements are permissible in 11 Social Security cases, section 406(b) “calls for court review of such arrangements as an 12 independent check, to assure that they yield reasonable results in particular cases.” Gisbrecht v. 13 Barnhart, 535 U.S. 789, 807 (2002). In deciding whether a fee agreement is reasonable, courts 14 must consider “the character of the representation and the results the representative achieved.” 15 Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (quoting Gisbrecht, 535 U.S. at 808). 16 The court “first look[s] to the fee agreement and then adjust[s] downward if the attorney provided 17 substandard representation or delayed the case, or if the requested fee would result in a windfall.” 18 Id. While a court may consider an attorney’s lodestar in deciding whether an award of fees under 19 section 406(b) is reasonable, “a lodestar analysis should be used only as an aid (and not a baseline) 20 in assessing the reasonableness of the fee.” Laboy v. Colvin, 631 F. App’x 468, 469 (9th Cir. 21 2016). 22 III. DISCUSSION 23 In this case, Gerrard reports that she spent a total of 178.40 hours litigating this case in 24 federal court from 12/16/2016 through 9/27/2022, amounting to $71,360.00 in attorneys’ fees. 25 Mot. at 4, Ex. E (Time Log). The court has already granted $44,752.75 in attorneys’ fees. 26 [Docket No. 42.] Combined with Gerrard’s current request of $22,359.00, the total award to 27 Gerrard would be $67,101.75 in attorneys’ fees for this case. Granting Gerrard’s second motion 1 attorneys’ fees would result in an effective hourly rate of $376.13.1 2 Upon considering the record and arguments, the court finds that the fees requested are 3 reasonable. First, the requested fee amount does not exceed the statutory maximum of 25%. The 4 hours counsel expended also appear to be reasonable. See Time Log. 5 Second, Gisbrecht and Crawford make clear that lodestar methodology should not drive 6 fee awards under section 406(b). This is because “the lodestar method under-compensates 7 attorneys for the risk they assume in representing SSDI claimants and ordinarily produces 8 remarkably smaller fees than would be produced by starting with the contingent-fee agreement.” 9 Crawford, 586 F.3d at 1149; see also Gisbrecht, 535 U.S. at 806 (emphasizing that the lodestar 10 calculation is intended to govern in fee-shifting cases, not fee awards under section 406(b)). 11 Indeed, after Gisbrecht, “district courts generally have been deferential to the terms of 12 contingency fee contracts in § 406(b) cases, accepting that the resulting de facto hourly rates may 13 exceed those for non contingency-fee arrangements.” Hearn v. Barnhart, 262 F. Supp. 2d 1033, 14 1037 (N.D. Cal. 2003) (Infante, J.). 15 Third, California district courts have awarded greater fees under section 406(b). The 16 $376.13 effective hourly rate sought here is low when compared to other cases. See, e.g., Truett v. 17 Berryhill, 2017 WL 3783892, at *2 (S.D. Cal. Aug. 31, 2017) (awarding an attorney 24.9% of the 18 past-due benefits, which resulted in an effective hourly rate of $1,788.62); Harrell v. Berryhill, 19 No. 16-cv-2428-TSH, 2018 WL 4616735 (N.D. Cal. Sept. 24, 2018) (awarding $49,584.96 in 20 attorneys’ fees, representing an effective hourly rate of $1,213.83 and 24.37% of the past-due 21 1 The court calculates the effective hourly rate based on the requested fee award under section 22 406(b) without deducting the EAJA fee award that was refunded to Plaintiff. This is because section 406 establishes the “exclusive regime for obtaining fees for successful representation of 23 Social Security benefits claimants.” Gisbrecht, 535 U.S. at 795-96. An attorney may receive fee awards under both EAJA and section 406(b) but because section 406(b) fees are exclusive, the 24 attorney must refund to the claimant the smaller of the fee awards. Id. at 796. In other words, the fee awards under those statutes are independent of each other and the court must determine 25 whether the total section 406(b) award is itself reasonable. See Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (“[A]n award under § 406(b) compensates an 26 attorney for all the attorney’s work before a federal court on behalf of the Social Security claimant in connection with the action that resulted in past-due benefits.” (emphasis added)); see also 27 Ainsworth v. Berryhill, No. 16-cv-03933-BLF, 2020 WL 6149710, at *2 (N.D. Cal. Oct. 20, 2020) 1 benefits); Ainsworth v. Berryhill, No. 16-cv-03933-BLF, 2020 WL 6149710, at *2 (N.D. Cal. Oct. 2 20, 2020) (finding an effective hourly rate of $1,325.34 reasonable). 3 Finally, nothing in the record suggests that Gerrard provided substandard representation. 4 Gerrard achieved a substantial award of past-due benefits for her client, and as noted, no party 5 objected to the fee request. 6 In light of the above considerations, the requested fee award is “not excessively large in 7 relation to the benefits achieved.” Crawford, 586 F.3d at 1151. 8 IV. CONCLUSION 9 For the reasons stated above, the motion for attorneys’ fees is granted. The court awards 10 fees in the amount of $22,359.00 less any administrative assessment pursuant to 42 U.S.C. § 11 406(d). The fees are to be paid out of Plaintiff’s past-due benefits in accordance with agency policy.2 12

13

IT IS SO ORDERED.

14 Dated: September 3, 2024 15 ______________________________________ 16 Donna M. Ryu 17 Chief Magistrate Judge 18 19 20 21 22 23 24 25 26 27