1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 L.G., 7 Case No. 18-cv-03492-JCS Plaintiff, 8 v. ORDER GRANTING MOTION FOR 9 ATTORNEY'S FEES UNDER 42 U.S.C. MARTIN J. O’MALLEY, Commissioner of § 406(b) 10 Social Security, Re: Dkt. No. 30 11 Defendant.

12 13 14 I. INTRODUCTION 15 Joshua B. Kons (“Counsel”), who represented L.G. in this matter under a contingency fee 16 agreement, brings a Motion for Attorney’s Fees Under

(b) (“Motion”), seeking an 17 award of $24,899.92. in attorney fees for work before this Court. For the reasons stated below, the 18 Motion is GRANTED. 1 19 II. BACKGROUND 20 L.G. entered into a contingent fee agreement with Counsel providing that Counsel would 21 be awarded 25 percent of all past-due benefits L.G. received as a result of this action. Dkt. no. 30- 22 1. The parties filed cross motions for summary judgment and the Court granted Plaintiff’s motion, 23 reversing the decision of the Commissioner and remanding for further proceedings. Dkt. no. 20. 24 On February 10, 2020, the Court approved a stipulated award of $5,000 in fees and $400 in costs 25 under the Equal Access to Justice Act (“EAJA”). Dkt. no. 26 (“EAJA stipulation”). 26 On March 27, 2024, the Social Security Administration issued a Notice of Award, 27 1 indicating that it was awarding $99,599.70 in past-due benefits to L.G. Dkt. no. 30-2. The notice 2 further states that L.G.’s counsel “may ask the court to approve a fee no large than 25 percent of 3 past due benefits.”

Although 25 percent of L.G.’s past-due benefits amounts to only 4 $24,899.92, the notice states that the Social Security Administration is withholding $92,399.70 to 5 cover the Court’s fee award.

6 Counsel asks the Court to award 25 percent of L.G.’s past due benefits ($24,899.92) in 7 attorney’s fees under

(b). He argues that the request is reasonable under Gisbrecht 8 v. Barnhart,

(2002), especially as the award will be offset by the EAJA fees 9 awarded in this case. He has supplied evidence that he spent 21.7 hours on the case. Dkt. no. 30- 10 4. 11 III. ANALYSIS 12 The scheme established by Congress for attorney fee awards in cases involving social 13 security claims is described by the Supreme Court as follows:

14 Fees for representation of individuals claiming Social Security old- age, survivor, or disability benefits, both at the administrative level 15 and in court, are governed by prescriptions Congress originated in 1965. Social Security Amendments of 1965,

, as 16 amended,

. . . . The statute deals with the administrative and judicial review stages discretely: § 406(a) governs 17 fees for representation in administrative proceedings; § 406(b) controls fees for representation in court. See also

404.1728(a) (2001). 19 Gisbrecht, 535 U.S. at 793–94. Subsection 406(b) provides, in relevant part, that “[w]henever a 20 court renders a judgment favorable to a claimant under this subchapter who was represented 21 before the court by an attorney, the court may determine and allow as part of its judgment a 22 reasonable fee for such representation, not in excess of 25 percent of the total of the past-due 23 benefits to which the claimant is entitled by reason of such judgment, and the Commissioner of 24 Social Security may . . . certify the amount of such fee for payment to such attorney out of, and 25 not in addition to, the amount of such past-due benefits.”

(b). 26 Under Gisbrecht, courts should “approach fee determinations [under § 406(b)] by looking 27 first to the contingent-fee agreement, then testing it for reasonableness,” and may reduce the 1 Gisbrecht,

. The Ninth Circuit has read Gisbrecht to mean that “court[s] may 2 properly reduce the fee for substandard performance, delay, or benefits that are not in proportion 3 to the time spent on the case.” Crawford v. Astrue,

(9th Cir. 2009) (citing 4 Gisbrecht

). In this analysis, courts “generally have been deferential to the terms 5 of the contingency fee contracts in § 406(b) cases, accepting that the resulting de facto hourly rates 6 may exceed those for non-contingency fee arrangements,” noting that “basing a reasonableness 7 determination on a simple hourly rate basis is inappropriate when an attorney is working pursuant 8 to a reasonable contingency contract for which there runs a substantial risk of loss.” Hearn v. 9 Barnhart,

(N.D. Cal. 2003). 10 In addition to the fees permitted under § 406(b), the EAJA, enacted in 1980, allows a party 11 who prevails against the United States in court, including a successful Social Security benefits 12 claimant, to receive an award of fees payable by the United States if the Government’s position in 13 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 15 expended” and the attorney’s “[hourly] rate.”

(d)(1)(B). In Gisbrecht, the 16 Supreme Court explained that “Congress harmonized fees payable by the Government under 17 EAJA with fees payable under § 406(b) out of the claimant’s past-due Social Security benefits in 18 this manner: Fee awards may be made under both prescriptions, but the claimant’s attorney must 19 refun[d] to the claimant the amount of the smaller fee.’”

(citing Act of Aug. 5, 20 1985, Pub. L. No. 99–80, § 3,

(1985)). Accordingly, “an EAJA award offsets an 21 award under [

(b)],” increasing “up to the point the claimant receives 100 percent 22 of the past-due benefits.” Gisbrecht,

. 23 Here, Counsel seeks $24,899.92 in attorney fees, which is 25 percent of the past-due 24 benefits awarded to L.G. The Court finds Counsel’s request to be reasonable under Gisbrecht. 25 First, Counsel has presented a valid contingent fee agreement. Second, Counsel has supplied 26 timesheets documenting hours worked, which the Court finds to be reasonable. Third, there is no 27 evidence that Counsel’s work was substandard or that the fee award is disproportionate to the 1 courts have approved under Section 406(b). See, e.g., L.M. v. Kijakazi, No. 17-CV-03562-JCS, 2 |}

, at *3 (N.D. Cal. Nov. 2, 2023) (approving effective hourly rate of $2,145); 3 JP. v. Kijakazi, No. 22-CV-00947-VKD,

, at *2 (N.D. Cal. Oct. 25, 2023) 4 (Observing that “[i]f all timekeepers are counted, [the] requested hourly rate is $1,500 [and if] 5 only the 3.1 hours of attorney time is considered, the requested hourly rate exceeds $3,000” and 6 || finding that these rates “are also not out of line with what other courts in this district have 7 || approved.”); Truett v. Berryhill, No. 13-CV-2742 W (BLM),

, at *2 (S.D. Cal. 8 Aug. 31, 2017) (awarding effective hourly rate of $1,788.62 under a contingent fee agreement). 9 || Moreover, Counsel obtained an excellent result for his client and took on the risk of contingent 10 || representation. 11 Accordingly, the Court finds that Counsel is entitled to the requested amount of 12 $24,899.92 in attorney fees under 42 U.S. § 406(b). 13 || IV. CONCLUSION 14 The Motion is GRANTED. Counsel is awarded $24,899.92 in attorneys’ fees. The EAJA 3 15 fees previously awarded to Counsel in this case, in the amount of $5,400, shall be paid to L.G. a 16 IT IS SO ORDERED.

|) Dated: June 13, 2024 19 5 LA € Mie J PH C. SPERO 20 nited States Magistrate Judge 21 22 23 24 25 26 27 28