1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 ROGER D. DREESMAN, Case No. 16-cv-02549-HRL (HSG)

8 Plaintiff, ORDER GRANTING PLAINTIFF’S MOTION FOR ATTORNEY’S FEES 9 v. Re: Dkt. No. 31 10 ANDREW M. SAUL1, 11 Defendant.

12 13 I. INTRODUCTION 14 Plaintiff’s counsel, Harvey P. Sackett, moves for attorney’s fees after successfully 15 representing Plaintiff Roger D. Dreesman in his appeal from denial of Social Security Disability 16 Insurance (SSDI) benefits. Dkt. No. 31. Sackett requests $23,439.63 in attorney’s fees under 17 section 206(b) of the Social Security Act (SSA),

(b). The Commissioner of Social 18 Security filed a response taking “no position on the reasonableness of the request.” Dkt. No. 33. 19 For the following reasons, the Court GRANTS the motion. 20 II. BACKGROUND Plaintiff filed this case on May 11, 2016, seeking review of the Commissioner’s decision 21 pursuant to the SSA,

(g). Dkt. No. 1. On June 30, 2017, the Court reversed the 22 Commissioner’s decision and remanded for further administrative proceedings. See Dreesman v. 23 Berryhill, No. 16-CV-02549-HRL,

, at *5 (N.D. Cal. June 30, 2017); Dkt. No. 24 27. On remand, an Administrative Law Judge found Plaintiff disabled and entitled to receive a 25 gross total of $157,758.50 in retroactive benefits from May 2012 through April 2019. Dkt. Nos. 26 27 1 31-1, 31-2. The Social Security Administration withheld 25% of the award ($39,439.63) in case 2 Plaintiff’s “representative . . . ask[s] the court to approve a fee no larger than 25 percent of past 3 due benefits.” Dkt. No. 31-2 at 3. 4 Pursuant to the parties’ stipulation, on September 27, 2017, the Court ordered payment of 5 $4,124.93 in attorney’s fees under the Equal Access to Justice Act (EAJA),

(d). 6 Dkt. No. 30. The order specifically noted that the “award is without prejudice to Plaintiff’s right 7 to seek attorney’s fees under . . .

(b), subject to the offset provisions of the EAJA.” 8 Dkt. No. 30 at 2. Plaintiff and Sackett’s representation agreement provided that Sackett was 9 “[c]harging a fee and requesting direct payment of the fee from withheld past-due benefits.” Dkt. 10 No. 31-3. On September 10, 2019, Plaintiff filed a declaration stating, “I acknowledge and agree 11 under the terms signed by Mr. Sackett and me in October 2012 . . . [that] Mr. Sackett is to be paid 12 up to 25% of the past-due benefits being withheld by [the Social Security Administration] for 13 attorney’s fees.” Dkt. No. 39. 14 Sackett filed the present motion on August 1, 2019. Dkt. No. 31. 15 III. LEGAL STANDARD 16 The SSA provides that “[w]henever a court renders a judgment favorable to a claimant . . . 17 who was represented before the court by an attorney, the court may determine and allow as part of 18 its judgment a reasonable fee for such representation, not in excess of 25 percent of the total of the 19 past-due benefits to which the claimant is entitled by reason of such judgment.” 42 U.S.C. 20 § 406(b)(1)(A). In fact, a “court-awarded fee is the only way a successful SSDI attorney may 21 recover fees for work performed before the district court,” as the statute criminalizes any other 22 collection of fees. Crawford v. Astrue,

(9th Cir. 2009) (citing 42 U.S.C. 23 § 406(b)(2)). 24 While the statute does not address how to determine whether a fee is reasonable, Ninth 25 Circuit case law directs district courts to “respect ‘the primacy of lawful attorney-client fee 26 agreements’ [by] ‘looking first to the contingent-fee agreement, then testing it for 27 reasonableness.’” Id. at 1148 (quoting Gisbrecht v. Barnhart,

(2002)). 1 representation and the results the representative achieved,” and adjust the award accordingly. 2 Gisbrecht,

. Thus, “if the attorney provided substandard representation or engaged 3 in dilatory conduct in order to increase the accrued amount of past-due benefits, or if the ‘benefits 4 are large in comparison to the amount of time counsel spent on the case,’” the Court may 5 appropriately reduce the fee resulting from the contingent-fee agreement. Crawford,

1148 (quoting Gisbrecht,

). 7 In addition, any § 406(b) fee award must be offset by any award under the EAJA. If the 8 Court awards fees under both statutes, “the claimant’s attorney must refun[d] to the claimant the 9 amount of the smaller fee.” Gisbrecht,

. 10 IV. ANALYSIS 11 Sackett requests a gross fee of $23,439.63, or approximately 14.9 percent of the total past- 12 due benefits to which Plaintiff was entitled, and a net fee of $19,314.70 after reimbursement of 13 EAJA fees. In support of his motion, Sackett provided a timesheet that reflected 22.65 hours of 14 services rendered in Plaintiff’s case, which includes 3 hours of paralegal work, suggesting, by the 15 Court’s calculation, an unadjusted hourly rate of $1,034.86. Sackett noted that his non-contingent 16 hourly fee can reach $650, due to his experience in SSDI cases. Dkt. No. 31 at 11. Sackett also 17 provided evidence that a lawyer representing SSDI claimants in federal court in 2015 could 18 anticipate payment in only about 24.56% of cases because (1) district courts immediately granted 19 benefits in only 2% of SSDI cases, and (2) in the 45% of cases in which the district court 20 remanded, the SSA awarded benefits only about 48% of the time. Finally, Sackett provided an 21 executed representation agreement, which stated that fees would be paid from withheld past-due 22 benefits, although did not specify a percentage. Dkt. No. 31-3. In response to the Court’s order 23 seeking confirmation of the agreed-upon contingency rate, Plaintiff filed a declaration 24 “acknowledge[ing] and agree[ing] [to] the terms signed by Mr. Sackett and me in October 2012 25 . . . [that] Mr. Sackett is to be paid up to 25% of the past-due benefits being withheld by SSA for 26 attorney’s fees.” Dkt. No. 39. 27 The Court finds Sackett has met his burden to demonstrate that the requested fees are 1 permitted under § 406(b). There is no evidence that Sackett’s performance was substandard; 2 || instead, his representation resulted in Plaintiff receiving substantial past-due benefits. 3 || Additionally, there is also no evidence of dilatory conduct or delay. While the suggested hourly 4 || rate appears high, Gisbrecht guides the Court to consider lodestar calculations only as an aid, 5 focusing instead on the contingency agreement and the outcome of the case.

. The 6 || requested fees amount to 14.9% of the benefits received—significantly lower than those bargained 7 for in the contingency-fee agreement. 8 Sackett also assumed a substantial risk of not recovering fees by representing Plaintiff on a 9 contingency basis for over six years. Sackett and Plaintiff entered into the agreement during 10 || administrative proceedings in 2012, prior to the filing of the underlying action in district court. At 11 || that point, the Commissioner had denied Plaintiff's first application for disability benefits. 12 Sackett, representing Plaintiff, then filed again for disability benefits and could not know that the 5 13 || Court would four years later remand to the Commissioner for a further hearing. Thus, given the 14 || results achieved, the amount of time he spent on the case, and his assumption of risk in agreeing to 3 15 || represent Plaintiff on a contingency basis, the Court finds Sackett’s requested fees reasonable. See 16 || Crawford,

(affirming the reasonableness of the fees where the effective hourly 3 17 || rates were $519, $875 and $902). 18 Vv. CONCLUSION 19 For the reasons set forth above, the Court GRANTS Sackett’s motion for attorney’s fees. 20 The Commissioner is directed to certify fees under

(b) in the amount of 21 $19,314.70, payable to Harvey P. Sackett and release the balance of withheld past-due benefits to 22 || Plaintiff. 23 IT IS SO ORDERED. 24 || Dated: 9/27/2019 25 Alapurdl 5 Mb |. 6 HAYWOOD S. GILLIAM, JR. United States District Judge 27 28