1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 S.R., 7 Case No. 22-cv-00516-JCS Plaintiff, 8 v. ORDER GRANTING MOTION FOR 9 ATTORNEY'S FEES UNDER 42 U.S.C. KILOLO KIJAKAZI, § 406(b) 10 Defendant. Re: Dkt. No. 21 11

12 13 I. INTRODUCTION 14 Katherine Siegfried (“Counsel”), who represented S.R. in this matter under a contingency 15 fee agreement, brings a Motion for Award of Attorney’ Fees Under

(b) 16 (“Motion”), seeking an award of $31,542.00 in attorney fees for work before this Court. For the 17 reasons stated below, the Motion is GRANTED. 1 18 II. BACKGROUND 19 S.R. entered into a contingent fee agreement with counsel providing that counsel would be 20 awarded 25% of all past-due benefits S.R. received as a result of this action. Siegfried Decl. ¶ 4 21 and dkt. no. 21-3 (Fee Agreement). S.R. initiated this action to seek review of the final decision 22 by the Commissioner of the Social Security Administration (“the Commissioner”) denying their 23 application for disability insurance benefits under Title II of the Social Security Act. After S.R. 24 filed a motion for summary judgment, the Commissioner stipulated to a voluntary remand of the 25 case for further proceedings, and upon remand, S.R. was found to be disabled and awarded past- 26 due benefits in the amount of $126,168.70. Siegfried Decl. ¶ 6 and dkt. no. 21-2 (Notice of 27 1 Award). The Commissioner withheld $31,542.18, which is 25% of the past due benefits awarded, 2 for attorneys’ fees incurred in this case.

3 On October 31, 2022, this Court approved a stipulated award of $10,500 in fees and $402 4 in costs under the Equal Access to Justice Act (“EAJA”),

(d). Dkt. no. 20. In 5 the Motion, counsel requests a fee of $31,542.00 under the contingency fee contract and 42 U.S.C. 6 § 406(b), noting in the Motion that if her request for fees under Section 406(b) is granted, the 7 $10,500 in fees awarded pursuant to the EAJA stipulation would be paid to S.R. The amount 8 requested in the Motion constitutes 25% of the past due benefits awarded by the Commissioner. 9 Counsel has offered time records showing that the total attorney time spent on the case was 50.55 10 hours. Dkt. no. 21-4. Thus, counsel seeks fees at an effective hourly rate of $623.98. 11 In the Motion, counsel argues that her request is reasonable under Gisbrecht v. Barnhart, 12

(2002) because S.R. entered into a valid contingent fee agreement with Counsel 13 and that agreement required Counsel to assume the risk that she would receive no compensation 14 for the time spent representing S.R. in this action if S.R. did not prevail. She further asserts that 15 the amount she requests in fees is reasonable in light of the services performed and the result 16 obtained. The Commissioner did not file a response to the Motion. 17 III. ANALYSIS 18 The scheme established by Congress for attorney fee awards in cases involving social 19 security claims is described by the Supreme Court as follows:

20 Fees for representation of individuals claiming Social Security old- age, survivor, or disability benefits, both at the administrative level 21 and in court, are governed by prescriptions Congress originated in 1965. Social Security Amendments of 1965,

, as 22 amended,

. . . . The statute deals with the administrative and judicial review stages discretely: § 406(a) governs 23 fees for representation in administrative proceedings; § 406(b) controls fees for representation in court. See also

404.1728(a) (2001). 25 Gisbrecht, 535 U.S. at 793–94. Subsection 406(b) provides, in relevant part, that “[w]henever a 26 court renders a judgment favorable to a claimant under this subchapter who was represented 27 before the court by an attorney, the court may determine and allow as part of its judgment a 1 benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of 2 Social Security may . . . certify the amount of such fee for payment to such attorney out of, and 3 not in addition to, the amount of such past-due benefits.”

(b). 4 Under Gisbrecht, courts should “approach fee determinations [under § 406(b)] by looking 5 first to the contingent-fee agreement, then testing it for reasonableness,” and may reduce the 6 recovery “based on the character of the representation and the results the representative achieved.” 7 Gisbrecht,

. The Ninth Circuit has applied Gisbrecht to mean that “court[s] may 8 properly reduce the fee for substandard performance, delay, or benefits that are not in proportion 9 to the time spent on the case.” Crawford v. Astrue,

(9th Cir. 2009) (citing 10 Gisbrecht

). In this analysis, courts “generally have been deferential to the terms 11 of the contingency fee contracts in § 406(b) cases, accepting that the resulting de facto hourly rates 12 may exceed those for non-contingency fee arrangements,” noting that “basing a reasonableness 13 determination on a simple hourly rate basis is inappropriate when an attorney is working pursuant 14 to a reasonable contingency contract for which there runs a substantial risk of loss.” Hearn v. 15 Barnhart,

(N.D. Cal. 2003). 16 In addition to the fees permitted under § 406(b), the EAJA, enacted in 1980, allows a party 17 who prevails against the United States in court, including a successful Social Security benefits 18 claimant, to receive an award of fees payable by the United States if the Government’s position in 19 the litigation was not “substantially justified.” Gisbrecht,

(citing

2412(d)(1)(A)). In contrast to fees awarded under § 406(b), EAJA fees are based on the “time 21 expended” and the attorney’s “[hourly] rate.”

(d)(1)(B). In Gisbrecht, the 22 Supreme Court explained that “Congress harmonized fees payable by the Government under 23 EAJA with fees payable under § 406(b) out of the claimant’s past-due Social Security benefits in 24 this manner: Fee awards may be made under both prescriptions, but the claimant’s attorney must 25 refun[d] to the claimant the amount of the smaller fee.’”

(citing Act of Aug. 5, 26 1985, Pub. L. No. 99–80, § 3,

(1985)). Accordingly, “an EAJA award offsets an 27 award under [

(b)],” increasing “up to the point the claimant receives 100 percent 1 The Court finds Counsel’s request to be reasonable under Gisbrecht. First, Counsel has 2 || presented a valid contingent fee agreement that provides for attorneys’ fees in the amount of 25% 3 || of past due benefits awarded to S.R. in the event S.R. prevails in this case. Second, she has 4 supplied a timesheet documenting hours worked, which the Court finds to be reasonable. Third, 5 there is no evidence that Counsel’s work was substandard or that the fee award is disproportionate 6 to the amount of work on the case. Rather, counsel obtained an excellent result for her client. The 7 Court further finds that the effective rate of $623.98/hour is within the range of what courts have 8 approved in recent years. See, e.g., Crawford v. Astrue,

(9th Cir. 2009) 9 (approving de facto hourly rates of $519, $875, and $902 in 2009); Reddick v. Berryhill, 16-CV- 10 29-BTM-BLM,

, at *2—3 (S.D. Cal. Mar. 11, 2019) (collecting cases and 11 approving de facto hourly rate of $1,080). 12 The Court notes, however, that the EAJA award, which was awarded to cover fees and 13 costs, should be paid in full, that is, in the amount of $10, 902 (rather than $10,500) to S.R. 14 || Iv. CONCLUSION 15 For the reasons stated above, the Motion is GRANTED. Counsel is awarded $31,542.00 in a 16 fees. The EAJA fees previously awarded to counsel in this case, in the amount of $10,902, shall 3 17 be paid to S.R. 18 IT IS SO ORDERED. 19 20 Dated: June 5, 2024 21 22 ZL € ME J PH C. SPERO 23 nited States Magistrate Judge 24 25 26 27 28