2 NORTHERN DISTRICT OF CALIFORNIA 3

4 MICHAEL LEON, 5 CASE NO. 22-cv-5373-RMI Plaintiff, 6 ORDER GRANTING PLAINTIFF’S 7 v. PETITION FOR

(b) LELAND DUDEK, ATTORNEY FEES 8 Acting Commissioner of Social Security,

9 Defendant 10

11 12 After Plaintiff Michael Leon brought this action for review of the Commissioner of Social 13 Security’s decision to deny benefits, the Court remanded the case, and the Commissioner issued a 14 favorable decision. His attorney, Katherine Siegfried, now seeks $26,422.55 in attorney fees under 15 section 206(b) of the Social Security Act,

(b). ECF No. 29. For the following reasons, 16 the court GRANTS the motion. 17 I. RELEVANT FACTS AND PROCEDURAL HISTORY 18

19 After Mr. Leon applied for disability benefits, that application was denied initially, at 20 reconsideration, after an initial administrative hearing, and at the Appeals Council. AR 1. Mr. Leon 21 then brought this action for judicial review pursuant to

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

, in the amount of $11,000. ECF No. 28. 25 On remand, the Commissioner granted Plaintiff’s application and awarded $105,690 in past-due 26 benefits. ECF No. 29, Ex. 3. Under a contingency fee agreement, Plaintiff agreed to pay counsel up to 27 25% of any past-due benefits resulting from a favorable disability decision. ECF No. 29, Ex. 4. In the 28 Notice of Change in Benefits, Plaintiff was informed that 25% of the past-due disability benefits 2 p. 2. 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 other grounds by Sorensen v. Mink,

, 1149 (9th Cir. 2001). Section 406(b)(1) provides 10 that a federal court that “renders a judgment favorable to a claimant . . .who was represented before the 11 court by an attorney” may grant the attorney “a reasonable fee for such representation, not in excess of 12 25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such 13 judgment.” In passing Section 406, Congress sought to protect attorneys from the nonpayment of fees, 14 while also shielding clients from unfairly large fees. Gisbrecht v. Barnhart,

(2002). 15 The Supreme Court in Gisbrecht explained that § 406(b) is meant “to control, not to displace, 16 [contingency] fee agreements between Social Security benefits claimants and their counsel.”

18 at 793. Even if a fee request under § 406(b) is within the 25 percent statutory limit, the attorney bears 19 the burden of showing that the fee sought is reasonable, and the court is responsible for serving as an 20 “independent check” to ensure the reasonableness of the fee. Id. at 807. Following Gisbrecht, the Ninth 21 Circuit has instructed that a § 406(b) fee request should be assessed by “looking first to the contingent- 22 fee agreement, then testing it for reasonableness.” Crawford v. Astrue,

(9th Cir. 23 2009) (en banc) (quoting Gisbrecht,

). The court should consider “the character of the 24 representation and the results the representative achieved,” and determine “whether the amount [of fees 25 specified in the contingency fee agreement] need be reduced,” for such reasons as “substandard 26 performance, delay, or benefits that are not in proportion to the time spent on the case.” Id. at 1151. 27 The reasonableness determination is not governed by the lodestar method, because “[t]he lodestar 28 method under-compensates attorneys for the risk they assume in representing [Social Security] claimants

and ordinarily produces remarkably smaller fees than would be produced by starting with the 2 3 The court finds counsel has met her burden to demonstrate that the requested fees are reasonable. 4 As noted above, Plaintiff entered into a contingent fee agreement providing for a 25% fee, which is 5 consistent with the statutory cap. There is no evidence that Siegfried’s performance was substandard; to 6 the contrary, counsel’s representation resulted in Plaintiff receiving $105,690 in past-due benefits. See 7 Matos v. Saul,

, at *2 (N.D. Cal. Apr. 14, 2021) (awarding 25% under contingent fee 8 agreement where plaintiff received $109,899.60 in benefits upon remand); Khlopoff v. Saul,

7043878, at *2 (N.D. Cal. Dec. 1, 2020) (awarding 25% under contingent fee agreement where plaintiff 10 received $73,209.00 in benefits upon remand). 11 Plaintiff’s counsel states her non-contingency based hourly rate for appellate cases (not related to 12 Social Security) is currently $500 per hour. ECF No. 29, Ex. 2, p. 1. She also states she spent 50.6 13 hours working on this case, leading to an effective hourly rate of $522 per hour.

Further, the court is 14 mindful of the Ninth Circuit’s instruction that “lawyers are not likely to spend unnecessary time on 15 contingency fee cases in the hope of inflating their fees” because “[t]he payoff is too uncertain.” 16 Moreno v. City of Sacramento,

(9th Cir. 2008). “As a result, courts should 17 18 generally defer to the ‘winning lawyer’s professional judgment as to how much time he was required to 19 spend on the case.’” Costa v. Comm’r of Soc. Sec. Admin.,

(9th Cir. 2012) (quoting 20 Moreno,

); see also Hearn v. Barnhart,

(N.D. Cal. 2003) 21 (“The courts recognize that basing a reasonableness determination on a simple hourly rate basis is 22 inappropriate when an attorney is working pursuant to a reasonable contingency contract for which there 23 runs a substantial risk of loss.”). As such, the requested fee is reasonable because of the substantial risk 24 of loss. See Crawford,

(approving effective hourly rates of $519, $875, and $902); 25 McCullough v. Berryhill,

(N.D. Cal. Nov. 15, 2018) (approving effectively hourly 26 rate of $874.72); Harrell v. Berryhill,

, at *4 (N.D. Cal. Sept. 24, 2018) (finding de 27 facto hourly rate of $1,213 reasonable under Gisbrecht); Lopez v. Colvin,

, at * 2 (N.D. 28 Cal. Jan. 17, 2017) (approving effective hourly rate of $1,131); Palos v. Colvin,

, at *

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

. “Congress 3 || harmonized fees payable by the Government under EAJA with fees payable under § 406(b) out of the 4 || claimant’s past-due Social Security benefits” by requiring the claimant’s attorney to refund to the > || claimant the amount of the smaller fee up to the point where the claimant receives 100% of the past-due ° II benefits. Id. Here, the court finds counsel’s § 406(b) request reasonable, and therefore counsel shall ’ refund to Plaintiff the $11,000 in EAJA fees previously awarded. See Khlopoff,

, at *2 (finding § 406(b) request reasonable and directing counsel to refund to client fees previously awarded ° under the EAJA). IV. CONCLUSION

12 3 For the reasons stated above, the court GRANTS Plaintiffs counsel’s motion for attorney’s fees.

4 The Commissioner is directed to certify fees under

(b) in the amount of $26,422.55, 15 || Payable to Katherine Siegfried. The court ORDERS the award of attorney fees pursuant to 406(b) to be 16 || Paid out of Plaintiffs past-due benefits in accordance with agency policy, to the extent that such past- 17 || due benefits are available and not used to pay an attorney fee under 406(a). Counsel is ORDERED to 1g || reimburse Plaintiff the $11,000.00 in EAJA fees to offset the payment of 406(b) fees. 19 || IT IS SO ORDERED. 20 Hf] loo 21 || Dated: May 14, 2025 22 Honorable Robert M. Illman °3 UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28