1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ANN BIVINS, Case No. 22-cv-07012-TSH

8 Plaintiff,

ORDER GRANTING MOTION FOR

9 v. ATTORNEY'S FEES PURSUANT TO 42 U.S.C. § 406(b) 10 MARTIN O’MALLEY, Re: Dkt. No. 29 11 Defendant.

12 13 I. INTRODUCTION 14 After Plaintiff Ann Bivins brought this action for review of the Commissioner of Social 15 Security’s decision to deny benefits, the Court remanded the case and the Commissioner issued a 16 favorable decision. Her attorney, Katherine R. Siegfried, now seeks $19,000 in attorney’s fees 17 under section 206(b) of the Social Security Act, 42 U.S.C. § 406(b). ECF No. 29. No opposition 18 has been filed. For the following reasons, the Court GRANTS the motion. 19 II. BACKGROUND 20 Plaintiff brought this action for judicial review under the Social Security Act, 42 U.S.C. § 21 405(g). On November 20, 2023, the Court granted Plaintiff’s motion for summary judgment and 22 remanded for further proceedings. ECF No. 25. The Court subsequently granted the parties’ 23 stipulation for attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, 24 in the amount of $9,800.00. ECF No. 28. 25 On remand, the Commissioner granted Plaintiff’s application and awarded $83,389 in 26 retroactive benefits. Siegfried Decl. ¶ 5, ECF No. 29-1; id., Ex. 2 (Notice of Award), ECF No. 29- 27 4. Under a contingent-fee agreement, Plaintiff agreed to pay counsel up to 25% of any past-due 1 III. LEGAL STANDARD 2 Attorneys handling social security proceedings may seek fees for their work under both the 3 EAJA and the Social Security Act. While the government pays an award pursuant to the EAJA, 4 an award pursuant to § 406 of the Social Security Act is paid out of a successful claimant’s past- 5 due benefits. See 42 U.S.C. § 406(b)(1)(A); Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 6 1991), abrogated on other grounds by Sorensen v. Mink, 239 F.3d 1140, 1149 (9th Cir. 2001). 7 Section 406(b)(1) provides that a federal court that “renders a judgment favorable to a claimant . . . 8 who was represented before the court by an attorney” may grant the attorney “a reasonable fee for 9 such representation, not in excess of 25 percent of the total of the past-due benefits to which the 10 claimant is entitled by reason of such judgment.” In passing § 406, Congress sought to protect 11 attorneys from the nonpayment of fees, while also shielding clients from unfairly large fees. 12 Gisbrecht v. Barnhart, 535 U.S. 789, 805 (2002). 13 The Supreme Court in Gisbrecht explained that § 406(b) is meant “to control, not to 14 displace, [contingency] fee agreements between Social Security benefits claimants and their 15 counsel.” 535 U.S. at 793. Even if a fee request under § 406(b) is within the 25 percent statutory 16 limit, the attorney bears the burden of showing that the fee sought is reasonable, and the court is 17 responsible for serving as an “independent check” to ensure the reasonableness of the fee. Id. at 18 807. Following Gisbrecht, the Ninth Circuit has instructed that a § 406(b) fee request should be 19 assessed by “looking first to the contingent-fee agreement, then testing it for reasonableness.” 20 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc) (quoting Gisbrecht, 535 U.S. at 21 808). The court should consider “the character of the representation and the results the 22 representative achieved,” and determine “whether the amount [of fees specified in the contingency 23 fee agreement] need be reduced,” for such reasons as “substandard performance, delay, or benefits 24 that are not in proportion to the time spent on the case.” Id. at 1151. The reasonableness 25 determination is not governed by the lodestar method, because “[t]he lodestar method under- 26 compensates attorneys for the risk they assume in representing [social security] claimants and 27 ordinarily produces remarkably smaller fees than would be produced by starting with the 1 record of hours spent and a statement of normal hourly billing charges[,] . . . but only as an aid in 2 assessing the reasonableness of the fee.” Id. (emphasis in original). 3 Additionally, a § 406(b) fee award is offset by any award of EAJA fees. Thus, if the court 4 awards fees under both the EAJA and § 406(b), “the claimant’s attorney must refun[d] to the 5 claimant the amount of the smaller fee.” Gisbrecht, 535 U.S. at 796 (citation omitted). 6 IV. DISCUSSION 7 The Court finds counsel has met her burden to demonstrate that the requested fees are 8 reasonable. As noted above, Plaintiff entered into a contingent fee agreement providing for a 25% 9 fee, which is consistent with the statutory cap. There is no evidence that Siegfried’s performance 10 was substandard; to the contrary, counsel’s representation resulted in Plaintiff receiving $83,389 11 in past-due benefits. See Matos v. Saul, 2021 WL 1405467, at *2 (N.D. Cal. Apr. 14, 2021) 12 (awarding 25% under contingent fee agreement where plaintiff received $109,899.60 in benefits 13 upon remand); Khlopoff v. Saul, 2020 WL 7043878, at *2 (N.D. Cal. Dec. 1, 2020) (awarding 14 25% under contingent fee agreement where plaintiff received $73,209.00 in benefits upon 15 remand). 16 Siegfried states her non-contingency based hourly rate for appellate cases (not related to 17 Social Security) is currently $500 per hour. Siegfried Decl. ¶ 2. She also states she spent 43.4 18 hours working on this case, leading to an effective hourly rate of $437.79 per hour, which is lower 19 than Siegfried’s typical hourly rate. Further, the Court is mindful of the Ninth Circuit’s instruction 20 that “lawyers are not likely to spend unnecessary time on contingency fee cases in the hope of 21 inflating their fees” because “[t]he payoff is too uncertain.” Moreno v. City of Sacramento, 534 22 F.3d 1106, 1112 (9th Cir. 2008). “As a result, courts should generally defer to the ‘winning 23 lawyer’s professional judgment as to how much time he was required to spend on the case.’” 24 Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (quoting Moreno, 534 25 F.3d at 1112); see also Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003) (“The 26 courts recognize that basing a reasonableness determination on a simple hourly rate basis is 27 inappropriate when an attorney is working pursuant to a reasonable contingency contract for 1 the substantial risk of loss inherently involved in representing Social Security disability claimants. 2 || See Crawford, 586 F.3d at 1153 (approving effective hourly rates of $519, $875, and $902); 3 || McCullough v. Berryhill, 2018 WL 6002324 (N.D. Cal. Nov. 15, 2018) (approving effectively 4 || hourly rate of $874.72); Harrell v. Berryhill, 2018 WL 4616735, at *4 (N.D. Cal. Sept. 24, 2018) 5 (finding de facto hourly rate of $1,213 reasonable under Gisbrecht); Lopez v. Colvin, 2017 WL 6 168060, at * 2 (N.D. Cal. Jan. 17, 2017) (approving effective hourly rate of $1,131); Palos v. 7 Colvin, 2016 WL 5110243, at * 2 (C.D. Cal. Sept. 20, 2016) (approving effective hourly rate of 8 $1,546.39). The Court therefore finds the requested fees are reasonable. 9 Once the Court determines that the fee sought under § 406(b) is reasonable, it must 10 || account for the attorney’s fees paid by the Commissioner under the EAJA. Gisbrecht, 535 U.S. at 11 796. “Congress harmonized fees payable by the Government under EAJA with fees payable under 12 § 406(b) out of the claimant’s past-due Social Security benefits” by requiring the claimant’s 5 13 attorney to refund to the claimant the amount of the smaller fee up to the point where the claimant 14 receives 100% of the past-due benefits. Gisbrecht, 535 U.S. at 796. Here, the Court finds 3 15 counsel’s § 406(b) request reasonable, and therefore counsel shall refund to Plaintiff the $9,800 in a 16 || EAJA fees previously awarded. See Khlopoff, 2020 WL 7043878, at *2 (finding § 406(b) request 3 17 reasonable and directing counsel to refund to client fees previously awarded under the EAJA). 18 V. CONCLUSION 19 For the reasons stated above, the Court GRANTS counsel’s motion for attorney’s fees. 20 The Commissioner is directed to certify fees under 42 U.S.C. § 406(b) in the amount of $19,000, 21 payable to Katherine Siegfried. Counsel is ORDERED to refund the $9,800 EAJA fee award to 22 Plaintiff Ann Bivins. 23 IT IS SO ORDERED. 24 25 Dated: September 30, 2024 26 AN. Lj, —

THOMAS S. HIXSON

27 United States Magistrate Judge 28