1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MARITES ONA, Case No. 20-cv-07071-TSH

8 Plaintiff,

ORDER GRANTING MOTION FOR

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

12 13 I. INTRODUCTION 14 After Plaintiff Marites Ona 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. Ona’s attorney, Katherine R. Siegfried, now seeks $13,981 in attorney’s fees 17 under section 206(b) of the Social Security Act, 42 U.S.C. § 406(b). ECF No. 29. The 18 government filed a statement indicating it takes no position as to the reasonableness of counsel’s 19 request. ECF No. 30. For the following reasons, the Court GRANTS the motion. 20 II. BACKGROUND 21 Ona brought this action for judicial review under the Social Security Act, 42 U.S.C. § 22 405(g). On May 19, 2021, the Court granted the parties’ stipulation to remand for further 23 proceedings. ECF No. 25. The Court subsequently granted the parties’ stipulation for attorney’s 24 fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, in the amount of 25 $5,000.00. ECF No. 28. 26 On remand, the Commissioner granted Ona’s application and awarded $55,925 in 27 retroactive benefits. Siegfried Decl. ¶ 6, ECF No. 29-1; id., Ex. 2 (Notice of Award), ECF No. 29- 1 benefits award, which in this case is $13,981. Id. ¶ 4 & Ex. 1, ECF No. 29-2. 2 III. LEGAL STANDARD 3 Attorneys handling social security proceedings may seek fees for their work under both the 4 EAJA and the Social Security Act. While the government pays an award pursuant to the EAJA, 5 an award pursuant to § 406 of the Social Security Act is paid out of a successful claimant’s past- 6 due benefits. See 42 U.S.C. § 406(b)(1)(A); Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 7 1991), abrogated on other grounds by Sorensen v. Mink, 239 F.3d 1140, 1149 (9th Cir. 2001). 8 Section 406(b)(1) provides that a federal court that “renders a judgment favorable to a claimant . . . 9 who was represented before the court by an attorney” may grant the attorney “a reasonable fee for 10 such representation, not in excess of 25 percent of the total of the past-due benefits to which the 11 claimant is entitled by reason of such judgment.” In passing § 406, Congress sought to protect 12 attorneys from the nonpayment of fees, while also shielding clients from unfairly large fees. 13 Gisbrecht v. Barnhart, 535 U.S. 789, 805 (2002). 14 The Supreme Court in Gisbrecht explained that § 406(b) is meant “to control, not to 15 displace, [contingency] fee agreements between Social Security benefits claimants and their 16 counsel.” 535 U.S. at 793. Even if a fee request under § 406(b) is within the 25 percent statutory 17 limit, the attorney bears the burden of showing that the fee sought is reasonable, and the court is 18 responsible for serving as an “independent check” to ensure the reasonableness of the fee. Id. at 19 807. Following Gisbrecht, the Ninth Circuit has instructed that a § 406(b) fee request should be 20 assessed by “looking first to the contingent-fee agreement, then testing it for reasonableness.” 21 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc) (quoting Gisbrecht, 535 U.S. at 22 808). The court should consider “the character of the representation and the results the 23 representative achieved,” and determine “whether the amount [of fees specified in the contingency 24 fee agreement] need be reduced,” for such reasons as “substandard performance, delay, or benefits 25 that are not in proportion to the time spent on the case.” Id. at 1151. The reasonableness 26 determination is not governed by the lodestar method, because “[t]he lodestar method under- 27 compensates attorneys for the risk they assume in representing [social security] claimants and 1 contingent-fee agreement.” Id. at 1150. However, “the court may require counsel to submit a 2 record of hours spent and a statement of normal hourly billing charges[,] . . . but only as an aid in 3 assessing the reasonableness of the fee.” Id. (emphasis in original). 4 Additionally, a § 406(b) fee award is offset by any award of EAJA fees. Thus, if the court 5 awards fees under both the EAJA and § 406(b), “the claimant’s attorney must refun[d] to the 6 claimant the amount of the smaller fee.” Gisbrecht, 535 U.S. at 796 (citation omitted). 7 IV. DISCUSSION 8 The Court finds counsel has met her burden to demonstrate that the requested fees are 9 reasonable. As noted above, Ona entered into a contingent fee agreement providing for a 25% fee, 10 which is consistent with the statutory cap. There is no evidence that Siegfried’s performance was 11 substandard; to the contrary, counsel’s representation resulted in Ona receiving $55,925 in past- 12 due benefits. See Matos v. Saul, 2021 WL 1405467, at *2 (N.D. Cal. Apr. 14, 2021) (awarding 13 25% under contingent fee agreement where plaintiff received $109,899.60 in benefits upon 14 remand); Khlopoff v. Saul, 2020 WL 7043878, at *2 (N.D. Cal. Dec. 1, 2020) (awarding 25% 15 under contingent fee agreement where plaintiff received $73,209.00 in benefits upon 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 25 18 hours working on this case, leading to an effective hourly rate of $559.24 per hour. Id. ¶ 9. While 19 this is higher than her typical rate, the Court is mindful of the Ninth Circuit’s instruction that 20 “lawyers are not likely to spend unnecessary time on contingency fee cases in the hope of inflating 21 their fees” because “[t]he payoff is too uncertain.” Moreno v. City of Sacramento, 534 F.3d 1106, 22 1112 (9th Cir. 2008). “As a result, courts should generally defer to the ‘winning lawyer’s 23 professional judgment as to how much time he was required to spend on the case.’” Costa v. 24 Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (quoting Moreno, 534 F.3d at 25 1112); see also Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003) (“The courts 26 recognize that basing a reasonableness determination on a simple hourly rate basis is inappropriate 27 when an attorney is working pursuant to a reasonable contingency contract for which there runs a 1 of loss inherently involved in representing Social Security disability claimants. See Crawford, 586 2 || F.3d at 1153 (approving effective hourly rates of $519, $875, and $902); McCullough v. Berryhill, 3 2018 WL 6002324 (N.D. Cal. Nov. 15, 2018) (approving effectively hourly rate of $874.72); 4 Harrell v. Berryhill, 2018 WL 4616735, at *4 (N.D. Cal. Sept. 24, 2018) (finding de facto hourly 5 rate of $1,213 reasonable under Gisbrecht); Lopez v. Colvin, 2017 WL 168060, at * 2 (N.D. Cal. 6 Jan. 17, 2017) (approving effective hourly rate of $1,131); Palos v. Colvin, 2016 WL 5110243, at 7 * 2 (C.D. Cal. Sept. 20, 2016) (approving effective hourly rate of $1,546.39). The Court therefore 8 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 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 Ona the $5,000 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 $13,981, 21 payable to Katherine Siegfried. Counsel is ORDERED to refund the $5,000 EAJA fee award to 22 || Plaintiff Marites Ona. 23 IT IS SO ORDERED. 24 25 Dated: June 6, 2022 26 7 LU \ :

THOMAS S. HIXSON

27 United States Magistrate Judge 28