1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JULIE ANN BARTON, Case No. 22-cv-03991-TSH

8 Plaintiff, ORDER GRANTING MOTION FOR 9 v. ATTORNEY'S FEES UNDER

(B) 10 MARTIN J. O’MALLEY, Commissioner of Social Security, Re: Dkt. No. 21 11 Defendant. 12 13 I. INTRODUCTION 14 After Plaintiff Julie Ann Barton brought this action for review of the Commissioner of 15 Social Security’s decision to deny benefits, the Court remanded the case and the Commissioner 16 issued a decision in her favor. Barton’s attorney, Robert C. Weems, now seeks $2,965.90 in 17 attorney’s fees under section 206(b) of the Social Security Act,

(b). ECF No. 21. 18 The government has filed a response stating it neither supports nor opposes counsel’s request. 19 ECF No. 22. For the following reasons, the Court GRANTS the motion. 20 II. BACKGROUND 21 Barton brought this action for judicial review under the Social Security Act,

405(g). On October 4, 2022, the Court granted the parties’ stipulation to remand for further 23 proceedings. ECF No. 19. On remand, the Commissioner granted Barton’s application and 24 awarded $59,317.98 in retroactive benefits. Weems Decl., Ex. 3 (Notice of Award), ECF No.21- 25 4. Under a contingent-fee agreement, Barton agreed to pay Weems up to 25% of any past-due 26 benefits award, which in this case would be $14,829.50.

Ex. 2 (Fee Agreement), ECF No. 21- 27 2. Weems now seeks an award of $2,965.90. Mot. at 1. 1 III. LEGAL STANDARD 2 Attorneys handling social security proceedings may seek fees for their work under both the 3 Equal Access to Justice Act and the Social Security Act. While the government pays an award 4 pursuant to the EAJA, an award pursuant to § 406 of the Social Security Act is paid out of a 5 successful claimant’s past-due benefits. See

(b)(1)(A); Russell v. Sullivan, 930

, 1446 (9th Cir. 1991), abrogated on other grounds by Sorensen v. Mink,

, 7 1149 (9th Cir. 2001). Section 406(b)(1) provides that a federal court that “renders a judgment 8 favorable to a claimant . . . who was represented before the court by an attorney” may grant the 9 attorney “a reasonable fee for such representation, not in excess of 25 percent of the total of the 10 past-due benefits to which the claimant is entitled by reason of such judgment.” In passing § 406, 11 Congress sought to protect attorneys from the nonpayment of fees, while also shielding clients 12 from unfairly large fees. Gisbrecht v. Barnhart,

(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.”

. 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,

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

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,

(citation omitted). 6 IV. DISCUSSION 7 The Court finds counsel has met his burden to demonstrate the requested fees are 8 reasonable. As noted above, Barton entered into a contingent fee agreement providing for a 25% 9 fee, which is consistent with the statutory cap. There is no evidence that counsel’s performance 10 was substandard; to the contrary, counsel’s representation resulted in Barton receiving $59,317.98 11 in past-due benefits. See Crooks v. Kijakazi,

, at *2 (N.D. Cal. May 10, 2022) 12 (awarding 25% under contingent fee agreement where plaintiff received $93,233 in benefits upon 13 remand); Matos v. Saul,

, at *2 (N.D. Cal. Apr. 14, 2021) (awarding 25% under 14 contingent fee agreement where plaintiff received $109,899.60 in benefits upon remand). 15 Weems states his “regular and customary base fee for representing individuals in federal 16 non-contingency and general civil actions during the periods relevant to this action was $500 per 17 hour beginning 2019.” Weems Decl. ¶ 7. He provided an invoice showing his firm spent 3.5 18 hours working on this case, leading to an effective hourly rate of $847.40 per hour. Weems Decl. 19 ¶ 6 & Ex. 4, ECF No. 21-5. While this is higher than his typical rate, the Court is mindful of the 20 Ninth Circuit’s instruction that “lawyers are not likely to spend unnecessary time on contingency 21 fee cases in the hope of inflating their fees” because “[t]he payoff is too uncertain.” Moreno v. 22 City of Sacramento,

(9th Cir. 2008). “As a result, courts should generally 23 defer to the ‘winning lawyer’s professional judgment as to how much time he was required to 24 spend on the case.’” Costa v. Comm’r of Soc. Sec. Admin.,

(9th Cir. 2012) 25 (quoting Moreno,

); see also Hearn v. Barnhart,

, 1037 26 (N.D. Cal. 2003) (“The courts recognize that basing a reasonableness determination on a simple 27 hourly rate basis is inappropriate when an attorney is working pursuant to a reasonable 1 is reasonable because of the substantial risk of loss inherently involved in representing Social 2 Security disability claimants. See Crawford,

(approving effective hourly rates of 3 || $519, $875, and $902); McCullough v. Berryhill,

(N.D. Cal. Nov. 15, 2018) 4 || (approving effectively hourly rate of $874.72); Harrell v. Berryhill,

, at *4 5 (N.D. Cal. Sept. 24, 2018) (finding de facto hourly rate of $1,213 reasonable under Gisbrecht); 6 Lopez v. Colvin,

, at * 2 (N.D. Cal. Jan. 17, 2017) (approving effective hourly 7 || rate of $1,131); Palos v. Colvin,

, at * 2 (C.D. Cal. Sept. 20, 2016) (approving 8 effective hourly rate of $1,546.39). The Court therefore finds the requested fees are reasonable. 9 Once the Court determines the fee sought under § 406(b) is reasonable, it must account for 10 || the attorney’s fees paid by the Commissioner under the EAJA. Gisbrecht,

. 11 “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 attorney 5 13 to refund to the claimant the amount of the smaller fee up to the point where the claimant receives 14 100% of the past-due benefits. Gisbrecht,

. Here, the government has not paid 15 any fees under EAJA, and the full $2,965.90 is therefore payable to Mr. Weems. 16 Vv. CONCLUSION 17 For the reasons stated above, the Court GRANTS counsel’s motion for attorney’s fees. 18 The Commissioner is directed to certify fees under

(b) in the amount of 19 || $$2,965.90, payable to Robert C. Weems. 20 IT IS SO ORDERED. 21 22 Dated: December 3, 2024 23 AY \- | □□ THOMAS S. HIXSON 24 United States Magistrate Judge 25 26 27 28