2 NORTHERN DISTRICT OF CALIFORNIA 3

4 LENORE BARTON, 5 CASE NO. 21-cv-9662-RMI Plaintiff, 6 [PROPOSED] ORDER GRANTING 7 v. PLAINTIFF’s PETITION FOR 42 U.S.C. CAROLYN COLVIN, §406(b) ATTORNEY FEES 8 Acting Commissioner of Social Security,

9 Defendant 10

11 After Plaintiff Lenore Barton brought this action for review of the Commissioner of Social 12 Security’s decision to deny benefits, the Court remanded the case, and the Commissioner issued a 13 14 favorable decision. Her attorney, Katherine Siegfried, now seeks $17,433.75 in attorney fees under 15 section 206(b) of the Social Security Act,

(b). ECF No. 26. For the following reasons, 16 the Court GRANTS the motion. 17 18 I. RELEVANT FACTS AND PROCEDURAL HISTORY 19 After Ms. Barton applied for disability benefits, her application was denied initially, at 20 21 reconsideration, after an initial administrative hearing, and at the Appeals Council. (AR 1). This action 22 for judicial review was then filed pursuant to

(g) on Ms. Barton’s behalf. ECF No. 1. 23 This Court found in Ms. Barton’s favor and issued an order remanding for further proceedings. ECF No. 24 22. The Court subsequently granted the parties’ stipulation for attorney fees under the Equal Access to 25 Justice Act (“EAJA”),

, in the amount of $9,800. ECF No. 25. 26 27 On remand, the Commissioner granted Plaintiff’s application and awarded disability benefits and 28 $69,735 in past-due benefits. ECF No. 26, Ex. 3. Under a contingency fee agreement, Plaintiff agreed to

pay counsel up to 25% of any past-due benefits resulting from a favorable disability decision. ECF No. 2 to $17,433.75 and that this amount was set aside to pay her attorney fees. ECF No. 26, Ex. 3. 3 II. LEGAL STANDARD 4

5 Attorneys handling Social Security proceedings may seek fees for their work under both the 6 EAJA and the Social Security Act. While the government pays an award pursuant to the EAJA, an 7 award pursuant to 406 of the Social Security Act is paid out of a successful claimant’s past-due benefits. 8 See

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

(9th Cir. 1991), abrogated on 9 10 other grounds by Sorensen v. Mink,

, 1149 (9th Cir. 2001). Section 406(b)(1) provides that 11 a federal court that “renders a judgment favorable to a claimant . . .who was represented before the court 12 by an attorney” may grant the attorney “a reasonable fee for such representation, not in excess of 25 13 percent of the total of the past-due benefits to which the claimant is entitled by reason of such 14 15 judgment.” In passing § 406, Congress sought to protect attorneys from the nonpayment of fees, while 16 also shielding clients from unfairly large fees. Gisbrecht v. Barnhart,

(2002). 17 The Supreme Court in Gisbrecht explained that § 406(b) is meant “to control, not to displace, 18 [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 20 21 burden of showing that the fee sought is reasonable, and the court is responsible for serving as an 22 “independent check” to ensure the reasonableness of the fee. Id. At 807. Following Gisbrecht, the Ninth 23 Circuit has instructed that a § 406(b) fee request should be assessed by “looking first to the contingent- 24 fee agreement, then testing it for reasonableness.” Crawford v. Astrue,

(9th Cir. 25 2009) (en banc) (quoting Gisbrecht,

). The court should consider “the character of the 26 27 representation and the results the representative achieved,” and determine “whether the amount [of fees 28 specified in the contingency fee agreement] need be reduced,” for such reasons as “substandard

performance, delay, or benefits that are not in proportion to the time spent on the case.” Id. at 1151. The 2 under-compensates attorneys for the risk they assume in representing [social security] claimants and 3 ordinarily produces remarkably smaller fees than would be produced by starting with the contingent-fee 4 agreement.” Id. at 1150. 5 6 III. DISCUSSION 7 The Court finds counsel has met her burden to demonstrate that the requested fees are 8 reasonable. As noted above, Plaintiff entered into a contingent fee agreement providing for a 25% fee, 9 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 Plaintiff receiving $69,735 in past-due 12 benefits. See Matos v. Saul,

, at *2 (N.D. Cal. Apr. 14, 2021)(awarding 25% under 13 contingent fee agreement where plaintiff received $109,899.60 in benefits upon remand); Khlopoff v. 14 15 Saul,

, at *2 (N.D. Cal. Dec. 1, 2020) (awarding 25% under contingent fee agreement 16 where plaintiff received $73,209.00 in benefits upon remand). 17 Plaintiff’s counsel states her non-contingency based hourly rate for appellate cases (not related to 18 Social Security) is currently $500 per hour. ECF No. 26, Ex. 1. She also states she spent 47.3 hours 19 working on this case, leading to an effective hourly rate of $369 per hour. Further, the Court is mindful 20 21 of the Ninth Circuit’s instruction that “lawyers are not likely to spend unnecessary time on contingency 22 fee cases in the hope of inflating their fees” because “[t]he payoff is too uncertain.” Moreno v. City of 23 Sacramento,

(9th Cir. 2008). “As a result, courts should generally defer to the 24 ‘winning lawyer’s professional judgment as to how much time he was required to spend on the case.’” 25 Costa v. Comm’r of Soc. Sec. Admin.,

(9th Cir. 2012) (quoting Moreno,

27 1112); see also Hearn v. Barnhart,

(N.D. Cal. 2003) (“The courts recognize 28 that basing a reasonableness determination on a simple hourly rate basis is inappropriate when an

attorney is working pursuant to a reasonable contingency contract for which there runs a substantial risk

(approving effective hourly rates of $519, $875, and $902); McCullough v. Berryhill, 2 ||

(N.D. Cal. Nov. 15, 2018) (approving effectively hourly rate of $874.72); Harrell v. 3 || Berryhill,

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

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

, at * 2 (C.D. Cal. Sept.

2016) (approving effective hourly rate of $1,546.39). The Court therefore finds the requested fees 8 are reasonable. Once the Court determines that the fee sought under § 406(b) is reasonable, it must account for ° the attorney’s fees paid by the Commissioner under the EAJA. Gisbrecht,

. “Congress harmonized fees payable by the Government under EAJA with fees payable under § 406(b) out of the

13 || claimant’s past-due Social Security benefits” by requiring the claimant’s attorney to refund to the 14 || claimant the amount of the smaller fee up to the point where the claimant receives 100% of the past-due 'S || benefits. Gisbrecht,

. The Court acknowledges that, in this case, the EAJA award was garnished to recover a federal debt. ECF No. 26, Ex. 5. Therefore, the fees payable through

(b) are not subject to reduction by the EAJA award. ECF No. 26, Ex. 4. ° IV. CONCLUSION 20 21 For the reasons stated above, the Court GRANTS counsel’s motion for attorney’s fees. The 22 || Commissioner is directed to certify fees under

(b) in the amount of $17,433.75, payable to Katherine Siegfried. The Court ORDERS the award of attorney fees pursuant to 406(b) to be paid out of Plaintiffs past-due benefits in accordance with agency policy, to the extent that such past-due 56 || benefits are available and not used to pay an attorney fee under 406(a). 27 || SO ORDERED. 28 || Dated: December 18, 2024 / M¢— Honorable Robert M. [Iman