Katherine R. Siegfried, CASBN 250558 1 Law Office of Katherine Siegfried 1939 Harrison St, Suite 120 2 Oakland, CA 94612 Phone: (510) 465-0018 3 Fax: (510) 217-3979 [email protected] 4 Attorney for Plaintiff, JOSEPHINE PALAFOX 5 ISMAIL J. RAMSEY United States Attorney 6 MATT PILE Associate General Counsel 7 Office of Program Litigation – 7 Social Security Administration 8 TIMOTHY R. BOLIN, SBN 259511 Special Assistant United States Attorney 9 Office of Program Litigation – 7 Social Security Administration 10 6401 Security Blvd Baltimore, MD 21235 11 Telephone: 510-970-4806 Facsimile: 415-744-0134 12 E-mail: [email protected] Attorneys for Defendant 13 UNITED STATES DISTRICT COURT 14 NORTHERN DISTRICT OF CALIFORNIA 15 16 JOSEPHINE PALAFOX, 17 CASE NO. 20-cv-07944-HSG Plaintiff, 18 JOINT ORDER AS MODIFIED 19 v. GRANTING MOTION FOR ATTORNEY’S FEES PURSUANT TO 42 20 MARTIN O’MALLEY U.S.C. § 406(b)(1) Commissioner of Social Security, 21 22 Defendant 23 24 After Plaintiff Josephine Palafox brought this action for review of the Commissioner of Social 25 Security’s decision to deny benefits, the Court remanded the case, and the Commissioner issued a 26 favorable decision. Her attorney, Katherine Siegfried, now seeks $30,687.68 in attorney fees under 27 section 206(b) of the Social Security Act,

(b). ECF No. 32. No opposition has been filed. 28 ECF No. 36. For the following reasons, the Court GRANTS the motion. I. RELEVANT FACTS AND PROCEDURAL HISTORY 1 After Ms. Palafox applied for disability benefits, her application was denied initially, at 2 reconsideration, after an initial administrative hearing, and at the Appeals Council. (AR 1). This action 3 4 for judicial review was then filed pursuant to

(g) on Ms. Palafox’s behalf. ECF No. 1. 5 This Court found in Ms. Palafox’s favor and issued an order remanding for further proceedings. ECF 6 No. 24. The Court subsequently granted the parties’ stipulation for attorney fees under the Equal Access 7 to Justice Act (“EAJA”),

, in the amount of $7,500. ECF No. 31. 8 9 On remand, the Commissioner granted Plaintiff’s application and awarded disability benefits, 10 Medicare insurance, and over $120,000 in past-due benefits. ECF No. 32, Ex. 3. Under a contingency 11 fee agreement, Plaintiff agreed to pay counsel up to 25% of any past-due benefits resulting from a 12 favorable disability decision. ECF No. 32, Ex. 4. 13 In the Notice of Award, Plaintiff was informed that 25% of the past-due SSDI benefits amounted 14 15 to $30,687.68 and that this amount was set aside to pay her attorney fees. ECF No. 32, Ex. 3. 16 II.LEGAL STANDARD 17 Attorneys handling Social Security proceedings may seek fees for their work under both the 18 EAJA and the Social Security Act. While the government pays an award pursuant to the EAJA, an 19 award pursuant to 406 of the Social Security Act is paid out of a successful claimant’s past-due benefits. 20 See

(b)(1)(A); Russell v. Sullivan,

(9th Cir. 1991), abrogated on 21 22 other grounds by Sorensen v. Mink,

, 1149 (9th Cir. 2001). Section 406(b)(1) provides that 23 a federal court that “renders a judgment favorable to a claimant . . .who was represented before the court 24 by an attorney” may grant the attorney “a reasonable fee for such representation, not in excess of 25 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such 26 judgment.” In passing § 406, Congress sought to protect attorneys from the nonpayment of fees, while 27 28 also shielding clients from unfairly large fees. Gisbrecht v. Barnhart,

(2002). The Supreme Court in Gisbrecht explained that § 406(b) is meant “to control, not to displace, 1 2 [contingency] fee agreements between Social Security benefits claimants and their counsel.”

793. Even if a fee request under § 406(b) is within the 25 percent statutory limit, the attorney bears the 4 burden of showing that the fee sought is reasonable, and the court is responsible for serving as an 5 6 7 “independent check” to ensure the reasonableness of the fee. Id. At 807. Following Gisbrecht, the 8 Ninth Circuit has instructed that a § 406(b) fee request should be assessed by “looking first to the 9 10 contingent-fee agreement, then testing it for reasonableness.” Crawford v. Astrue,

, 1149 11 (9th Cir. 2009) (en banc) (quoting Gisbrecht,

). The court should consider “the character 12 of the representation and the results the representative achieved,” and determine “whether the amount 13 [of fees specified in the contingency fee agreement] need be reduced,” for such reasons as “substandard 14 15 performance, delay, or benefits that are not in proportion to the time spent on the case.” Id. at 1151. The 16 reasonableness determination is not governed by the lodestar method, because “[t]he lodestar method 17 under-compensates attorneys for the risk they assume in representing [social security] claimants and 18 19 ordinarily produces remarkably smaller fees than would be produced by starting with the contingent-fee 20 agreement.” Id. at 1150. 21 22 Additionally, a § 406(b) fee award is offset by any award of EAJA fees. Thus, if the court 23 awards fees under both the EAJA and § 406(b), “the claimant’s attorney must refun[d] to the claimant 24 the amount of the smaller fee.” Gisbrecht,

(citation omitted). 25 III.DISCUSSION 26 The Court finds counsel has met her burden to demonstrate that the requested fees are 27 28 reasonable. As noted above, Plaintiff entered into a contingent fee agreement providing for a 25% fee, substandard; to the contrary, counsel’s representation resulted in Plaintiff receiving $122,750.72 in past- 1 due benefits. See Matos v. Saul,

, at *2 (N.D. Cal. Apr. 14, 2021)(awarding 25% 2 3 under contingent fee agreement where plaintiff received $109,899.60 in benefits upon remand); Khlopoff 4 v.Saul,

, at *2 (N.D. Cal. Dec. 1, 2020) (awarding 25% under contingent fee 5 agreement where plaintiff received $73,209.00 in benefits upon remand). 6 7 Plaintiff’s counsel states her non-contingency based hourly rate for appellate cases (not related 8 to Social Security) is currently $500 per hour. ECF No. 32, Ex. 1. She also states she spent 48.7 hours 9 working on this case, leading to an effective hourly rate of $630.14 per hour. Further, the Court is 10 mindful of the Ninth Circuit’s instruction that “lawyers are not likely to spend unnecessary time on 11 12 contingency fee cases in the hope of inflating their fees” because “[t]he payoff is too uncertain.” Moreno 13 v.City of Sacramento,

(9th Cir. 2008). As such, the requested fee is reasonable 14 because of the substantial risk of loss. See Crawford,

(approving effective hourly rates 15 of $519, $875, and $902); McCullough v. Berryhill,

(N.D. Cal. Nov. 15, 2018) 16 17 (approving effectively hourly rate of $874.72); Harrell v. Berryhill,

, at *4 (N.D. Cal. 18 Sept. 24, 2018) (finding de facto hourly rate of $1,213 reasonable under Gisbrecht); Lopez v. Colvin, 19

, at * 2 (N.D. Cal. Jan. 17, 2017) (approving effective hourly rate of $1,131); Palos v. 20 Colvin,

, at * 2 (C.D. Cal. Sept. 20, 2016) (approving effective hourly rate of 21 $1,546.39). The Court therefore finds the requested fees are reasonable. 22 23 24 25 26 27 28 Once the Court determines that the fee sought under § 406(b) is reasonable, it must account for 2 || the attorney’s fees paid by the Commissioner under the EAJA. Gisbrecht,

. “Congress 3 || harmonized fees payable by the Government under EAJA with fees payable under § 406(b) out of the claimant’s past-due Social Security benefits” by requiring the claimant’s attorney to refund to the 5 6 7 claimant the amount of the smaller fee up to the point where the claimant receives 100% of the past-due 9 || benefits. Gisbrecht,

. Here, the Court finds counsel’s § 406(b) request reasonable, and 10 || therefore counsel shall refund to Plaintiff the $7,500 in EAJA fees previously awarded. See Khlopoff; 'T

878, at *2 (finding § 406(b) request reasonable and directing counsel to refund to client fees previously awarded under the EAJA).

14 5 IV. CONCLUSION 6 For the reasons stated above, the Court GRANTS counsel’s motion for attorney’s fees. The

17 || Commissioner is directed to certify fees under

(b) in the amount of $30,687.68, payable 18 Katherine Siegfried. The Court ORDERS the award of attorney fees pursuant to 406(b) to be paid out of Plaintiff's past-due benefits in accordance with agency policy, to the extent that such past-due benefits are available and not used to pay an attorney fee under 406(a).Counsel is ORDERED to 21 » reimburse Plaintiff the $7,500.00 in EAJA fees to offset the payment of 406(b) fees. 23 24 || Dated: 11/12/2024 Aaipueed 8 Mb). 25 HONORABLE HAYWOOD S. GILLIAM, JR.

United States District Judge 28