1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 T.H., Case No. 18-cv-05435-JSC

8 Plaintiff, ORDER RE: PLAINTIFF’S MOTION 9 v. FOR ATTORNEY’S FEES

10 ANDREW SAUL, Re: Dkt. No. 36 Defendant. 11

12 13 Plaintiff’s counsel, David J. Linden, moves for attorney’s fees pursuant to

406(b) for representing Plaintiff in his appeal of the Commissioner of the Social Security 15 Administration’s (“Commissioner’s”) denial of social security disability benefits. (Dkt. No. 36.) 16 The Commissioner’s response “takes no position on the reasonableness of [Plaintiff’s] request” for 17 fees. (Dkt. No. 38 at 3.) After careful consideration of Plaintiff’s motion and the relevant legal 18 authority, the Court determines that oral argument is unnecessary, see N.D. Cal. Civ. L.R. 7-1(b), 19 and GRANTS the motion for attorney’s fees pursuant to Section 406(b). 20 BACKGROUND 21 This case stems from Plaintiff’s appeal of the Social Security Administration’s (“SSA’s”) 22 denial of social security benefits for multiple mental impairments, including: obsessive 23 compulsive disorder, generalized anxiety disorder, major depressive disorder, and an insomnia 24 disorder. On February 20, 2020, the Court granted Plaintiff’s motion for summary judgment, 25 denied Defendant’s motion for summary judgment, and remanded for further proceedings. (Dkt. 26 No. 31.) On May 20, 2020, pursuant to the parties’ stipulation, the Court awarded $9,500.00 in 27 fees to Plaintiff’s counsel under the Equal Access to Justice Act (“EAJA”),

(d). 1 Following remand, SSA found Plaintiff disabled. (Dkt. No. 36-2.) On November 15, 2 2020, Plaintiff was notified that he had been awarded disability benefits from 2014-2020 and that 3 he would receive $51,328.40 in past due benefits. (Dkt. No. 36-2.) Social Security withheld 4 $15,551.00 from Plaintiff’s past due award for attorney’s fees as 25 percent of Plaintiff’s past-due 5 benefits. (Id. at 3.) Plaintiff’s counsel thereafter filed the now pending motion for attorney’s fees 6 for work performed in this Court under Section 406(b). (Dkt. No. 36.) Pursuant to Plaintiff and 7 his counsel’s contingency fee agreement for this case, counsel may seek fees up to 25 percent of 8 any past-due benefits awarded to Plaintiff. (Dkt. No. 36-1 at 4.) Counsel accordingly requests 9 fees in the amount of $15,551.00 that represents approximately 25 percent of Plaintiff’s past-due 10 benefits. (Dkt. Nos. 36 at 1-2, 36-2 at 3.) Plaintiff’s counsel served Plaintiff with a copy of the 11 motion. (Dkt. No. 40.) The Commissioner filed a response taking no position on the 12 reasonableness of the fees sought. (Dkt. No. 38.) 13 LEGAL STANDARD 14 Section 406(b) provides that “[w]henever a court renders a judgment favorable to a [social 15 security] claimant under this subchapter who was represented before the court by an attorney, the 16 court may determine and allow as part of its judgment a reasonable fee” to claimant’s attorney; 17 such a fee can be no more than 25 percent of the total of past-due benefits awarded to the claimant. 18

(b)(1)(A). A court may award such a fee even if the court’s judgment did not 19 immediately result in an award of past-due benefits; where the court, for instance, remands for 20 further consideration, the court may calculate the 25 percent fee based upon any past-due benefits 21 awarded on remand. See, e.g., Crawford v. Astrue,

(9th Cir. 2009) (en banc). 22 Under Section 406(b), a court must serve “as an independent check” of contingency fee 23 agreements “to assure that they yield reasonable results.” Gisbrecht v. Barnhart,

, 24 807 (2002). Section 406(b) “does not displace contingent-fee agreements within the statutory 25 ceiling; instead, [Section] 406(b) instructs courts to review for reasonableness fees yielded by 26 those agreements.”

. The court’s review of a fee agreement is based on the character 27 of the representation and the results achieved, see Gisbrecht,

, and can include 1 to accumulate additional fees; whether the requested fees are excessively large in relation to the 2 benefits achieved; and the risk counsel assumed by accepting the case. See Crawford,

1151-52. 4 A court must offset an award of Section 406(b) attorneys’ fees by any award of fees 5 granted under the EAJA. See Gisbrecht,

; Parrish v. Comm’r of Soc. Sec. Admin., 6

(9th Cir. 2012). 7 ANALYSIS 8 Plaintiff’s counsel has demonstrated that the amount of fees requested is reasonable for the 9 services rendered. See Gisbrecht,

. First, while not dispositive, Plaintiff’s and 10 counsel’s contingency fee agreement is within the 25 percent threshold permitted under Section 11 406(b), as the agreement provides that counsel will not ask for a fee of more than 25 percent of the 12 total past-due benefits awarded. (Dkt. No. 36-1 at 4-5.) Second, there is no indication that a 13 reduction in fees is warranted due to any substandard performance by counsel or that counsel 14 delayed these proceedings in an effort to increase the amount of fees awarded. To the contrary, 15 counsel provided substantial work and achieved favorable results for Plaintiff as he succeeded in 16 having the Court remand this matter for further proceedings. Nor is the amount of fees, 17 $15,551.00, excessive; in fact, the SSA specified that this amount is 25 percent of Plaintiff’s past- 18 due benefits. (Dkt. No. 36-2 at 3.) See, e.g., Eckert v. Berryhill, No. 15-CV-04461-JCS,

3977379, at *3 (N.D. Cal. Sept. 11, 2017) (awarding $16,566.25 in fees following an award of 20 $66,265 in retroactive benefits); Devigili v. Berryhill, No. 15-CV-02237-SI,

, at 21 *2 (N.D. Cal. June 7, 2017) (awarding $15,278.00 in fees following an award of $76,391.00 in 22 retroactive benefits); Conner v. Colvin, No. 13-CV-03324-KAW,

, at *3 (N.D. 23 Cal. Oct. 3, 2016) (awarding $17,746.00 in fees following an award of $94,987.60 in retroactive 24 benefits). Lastly, the Court finds that Plaintiff’s counsel assumed a substantial risk of not 25 recovering fees. Plaintiff and counsel entered into the contingency fee agreement after Plaintiff 26 initially filed for social security disability benefits. (Dkt. Nos. 15-4 at 58, 36-1 at 5.) Counsel 27 began representing Plaintiff after the Agency denied Plaintiff’s initial applications, and 1 unfavorable decision following a hearing, and the Appeals Council determined that it would not 2 || review the ALJ’s findings. Despite this, counsel appealed this action to federal court, and counsel 3 could not know that the action would result in remand to the Commissioner. 4 Accordingly, the Court finds that the amount of requested fees is reasonable. 5 CONCLUSION 6 For the reasons described above, the Court GRANTS Plaintiff’s counsel’s motion for fees. 7 The Commissioner is directed to certify fees under

(b) in the amount of 8 $15,551.00, payable to David J. Linden, Attorney at Law. Plaintiffs counsel is ordered to refund 9 the previously awarded EAJA fees, in the amount of $9,500.00, to Plaintiff. 10 IT IS SO ORDERED. 11 Dated: March 30, 2021 St ’ ne JIXCQUELINE SCOTT CORLE 14 United States Magistrate Judge 15

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