1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MATTHEW H., Case No. 21-cv-07897-JSC

8 Plaintiff, ORDER MOTION FOR ATTORNEY’S 9 v. FEES UNDER42 U.S.C. § 406(b)

10 LELAND DUDEK1, Re: Dkt. No. 27 Acting Commissioner, Social Security, 11 Defendant.

12

13 Plaintiff’s counsel, Patricia L. McCabe, moves for attorney’s fees pursuant to

406(b) for representing Plaintiff in his successful appeal of the Commissioner of the Social 15 Security Administration’s denial of social security disability benefits. (Dkt. No 27.) After careful 16 consideration of Plaintiff’s motion and the relevant legal authority, the Court determines oral 17 argument is unnecessary, see N.D. Cal. Civ. L.R. 7-1(b), and GRANTS the motion for attorney’s 18 fees pursuant to Section 406(b). 19 BACKGROUND 20 This case stems from Plaintiff’s appeal of the Social Security Administration’s (“SSA”) 21 denial of his application for disability benefits for physical impairments including osteoporosis, 22 seizure disorder, alcohol abuse, and hyperparathyroidism. Plaintiff filed his motion for summary 23 judgment on June 13, 2022. (Dkt. No. 18.) The government did not file an opposition brief, and 24 instead, stipulated to a voluntary remand under § 405(g), sentence four. (Dkt. No. 23.) On 25 October 31, 2022, the Court granted Plaintiff’s application for $6,500.00 in fees under the Equal 26 27 1 Access to Justice Act (“EAJA”),

(d). (Dkt. No. 26.) 2 Following remand, the SSA found plaintiff disabled. (Dkt. No. 27-5.) Plaintiff was 3 awarded disability benefits as of January 1, 2019, which resulted in total back due benefits of 4 $72,234.00. (Id.) The SSA withheld 25 percent of the total retroactive benefits, $18,058.50, for 5 payment of attorney’s fees. (Dkt. No. 27-6.) Pursuant to Plaintiff and his counsel’s contingency 6 fee agreement of this case, counsel may seek fees up to 25 percent of any past-due benefits 7 awarded to Plaintiff. (Dkt. No. 27-2 at 2.) Counsel has already been awarded attorney’s fees in 8 the amount of $7,200.00 pursuant to Section 406(a) for services rendered in connection with 9 administrative proceedings. (Dkt. No. 27-6.) Plaintiff now seeks attorney’s fees in the amount of 10 $10,858.50 under Section 406(b). (Dkt. No. 27-1 at 5). From this amount, counsel agrees to 11 refund Plaintiff $6,500 for EAJA fees and offers to “refund” Plaintiff $715.00 to account for 12 scheduling delays. (Dkt. No. 27-1 at 5.) Counsel thus seeks net attorney’s fees of $3,643.50. 13 (Id.) Plaintiff’s counsel served Plaintiff with a copy of this motion. (Dkt. No 27 at 5.) The 14 Commissioner filed a response in which he took no position on Plaintiff’s motion. (Dkt. No. 29.) 15 LEGAL STANDARD 16 Section 406(b) provides “[w]henever a court renders a judgment favorable to a [social 17 security] claimant under this subchapter who was represented before the court by an attorney, the 18 court may determine and allow as part of its judgment a reasonable fee” to claimant’s attorney; 19 such a fee can be no more than 25 percent of the total of past-due benefits awarded to the claimant. 20

(b)(1)(A). A court may award such a fee even if the court's judgment did not 21 immediately result in an award of past-due benefits; where the court, for instance, remands for 22 further consideration, the court may calculate the 25 percent fee based upon any past-due benefits 23 awarded on remand. See, e.g., Crawford v. Astrue,

(9th Cir. 2009) (en banc). 24 Under Section 406(b), a court must serve “as an independent check” of contingency fee 25 agreements “to assure that they yield reasonable results.” Gisbrecht v. Barnhart,

, 26 807 (2002). Section 406(b) “does not displace contingent-fee agreements within the statutory 27 ceiling; instead, [Section] 406(b) instructs courts to review for reasonableness fees yielded by 1 of the representation and the results achieved, see Gisbrecht,

, and can include 2 analyzing: whether counsel provided substandard representation; any dilatory conduct by counsel 3 to accumulate additional fees; whether the requested fees are excessively large in relation to the 4 benefits achieved; and the risk counsel assumed by accepting the case. See Crawford,

1151-52. 6 A court must offset an award of Section 406(b) attorneys' fees by any award of fees 7 granted under the EAJA. See Gisbrecht,

; Parrish v. Comm'r of Soc. Sec. Admin., 8

(9th Cir. 2012). 9 DISCUSSION 10 Plaintiff’s counsel has demonstrated the amount of fees requested under 406(b) is 11 reasonable for the services rendered. See Gisbrecht,

. 12 First, while not dispositive, Plaintiff’s and counsel’s contingency fee arrangement is within 13 the 25 percent threshold permitted under Section 406(b), as the agreement provides counsel will 14 not ask for a fee of more than 25 percent of the total past-due benefits awarded. (Dkt. No. 27-1.) 15 Second, there is no indication a reduction in fees is warranted due to any substandard 16 performance by counsel or that counsel delayed these proceeding in an effort to increase the 17 amount of fees awarded. To the contrary, counsel provided substantial work and achieved 18 favorable results for Plaintiff as the Commissioner agreed to a voluntary remand for further 19 proceedings after receipt of Plaintiff’s motion for summary judgment. (Dkt. No. 23.) 20 Additionally, counsel voluntarily agrees to discount the attorney’s fees sought under 406(b) by 21 $715.00 based on counsel’s request for two continuances which resulted in a 72-day delay. (Dkt. 22 No. 27-1 at 5.) While counsel proposes this amount be awarded as fees which she will “refund” to 23 Plaintiff, the proper course, given counsel’s concession she is not entitled to these fees, is to 24 decline to award them. Upon notice of this Order, SSA should then “release the remaining 25 amount” to Plaintiff. (Dkt. No. 27-6 at 2.) 26 Nor is the amount of fees, $10,858.50, excessive. See, e.g., James F. v. King, No. 3:21- 27 CV-08392-JSC,

(N.D. Cal. Feb. 14, 2025) (awarding $43,914.40 in fees 1 277398 (N.D. Cal. Jan. 23, 2025) (awarding $32,136 in fees following an award of $128,544); 2 || Mirto v. Colvin, No. 23-CV-03198-SVK,

(N.D. Cal. Dec. 30, 2024) (awarding 3 $9,621.42 in fees following an award of $38,485.69); Barton v. Colvin, No. 21-CV-9662-RMI, 4

(N.D. Cal. Dec. 18, 2024) (awarding $17,433.75 in fees following an award of 5 || $69,735). 6 Lastly, the Court finds Plaintiff's counsel assumed a substantial risk of not recovering fees 7 || when accepting this case. At the time counsel filed this action, the SSA had completely denied 8 || Plaintiff any requested benefits, and counsel could not know the Commissioner would agree to a 9 || remand. Further, counsel notes the risk Plaintiffs alcohol-use disorder could have precluded the 10 || claim in both the United States District Court and in the underlying administrative action. (Dkt. 11 No. 27-1 at 8.) Accordingly, the Court finds the amount of requested fees is reasonable. 12 CONCLUSION 13 For the reasons described above, the Court GRANTS Plaintiffs counsel’s motion for fees. 14 The Commissioner is directed to certify fees under

(b) in the amount of 3 15 $10,143.50 payable to The Law Offices of Patricia L. McCabe. Plaintiffs counsel is ordered to a 16 || refund to Plaintiff the previously awarded EAJA fees in the amount of $6,500.00. 3 17 This Order disposes of Docket. No. 27.

19 IT IS SO ORDERED. 20 || Dated: April 7, 2025

22 ne JAGQUELINE SCOTT CORL 23 United States District Judge 24 25 26 27 28