1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CRYSTAL A. LEWIS, Case No. 22-cv-05180-TSH
8 Plaintiff, ORDER GRANTING MOTION FOR 9 v. ATTORNEY'S FEES
10 LELAND DUDEK, Acting Commissioner Re: Dkt. No. 37 of the Social Security Administration, 11 Defendant. 12
13 I. INTRODUCTION 14 After Plaintiff Crystal Lewis brought this action for review of the Commissioner of Social 15 Security’s decision to deny benefits, the Court remanded the case, and the Commissioner 16 subsequently issued a decision in her favor. Lewis’s attorney, Richard Zieman, now seeks 17 $40,296 in attorney’s fees under section 206(b) of the Social Security Act, 42 U.S.C. § 406(b). 18 ECF No. 37. For the following reasons, the Court GRANTS the motion. 19 II. BACKGROUND 20 Lewis brought this action for judicial review under the Social Security Act, 42 U.S.C. § 21 405(g). On November 21, 2023, the Court granted Lewis’s summary judgment motion and 22 remanded for further proceedings. ECF No. 33. The Court subsequently granted the parties’ 23 stipulation for attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, 24 in the amount of $8,300. ECF No. 36. 25 On remand, the Commissioner granted Lewis’s application and awarded $161,184 in 26 retroactive benefits. Mot., Ex. A (Notice of Award), ECF No. 37-2; Zieman Decl. ¶ 6, ECF No. 27 37-5. Under a contingent-fee agreement, Lewis agreed to pay counsel up to 25% of any past-due 1 benefits award, which in this case would be $40,296. Mot., Ex. B (Fee Agreement), ECF No. 37- 2 3; Zieman Decl. ¶ 4. 3 III. LEGAL STANDARD 4 Attorneys handling social security proceedings may seek fees for their work under both the 5 EAJA and the Social Security Act. While the government pays an award pursuant to the EAJA, 6 an award pursuant to § 406 of the Social Security Act is paid out of a successful claimant’s past- 7 due benefits. See 42 U.S.C. § 406(b)(1)(A); Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 8 1991), abrogated on other grounds by Sorensen v. Mink, 239 F.3d 1140, 1149 (9th Cir. 2001). 9 Section 406(b)(1) provides that a federal court that “renders a judgment favorable to a claimant . . . 10 who was represented before the court by an attorney” may grant the attorney “a reasonable fee for 11 such representation, not in excess of 25 percent of the total of the past-due benefits to which the 12 claimant is entitled by reason of such judgment.” In passing § 406, Congress sought to protect 13 attorneys from the nonpayment of fees, while also shielding clients from unfairly large fees. 14 Gisbrecht v. Barnhart, 535 U.S. 789, 805 (2002). 15 The Supreme Court in Gisbrecht explained that § 406(b) is meant “to control, not to 16 displace, [contingency] fee agreements between Social Security benefits claimants and their 17 counsel.” 535 U.S. at 793. Even if a fee request under § 406(b) is within the 25 percent statutory 18 limit, the attorney bears the burden of showing that the fee sought is reasonable, and the court is 19 responsible for serving as an “independent check” to ensure the reasonableness of the fee. Id. at 20 807. Following Gisbrecht, the Ninth Circuit has instructed that a § 406(b) fee request should be 21 assessed by “looking first to the contingent-fee agreement, then testing it for reasonableness.” 22 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc) (quoting Gisbrecht, 535 U.S. at 23 808). The court should consider “the character of the representation and the results the 24 representative achieved,” and determine “whether the amount [of fees specified in the contingency 25 fee agreement] need be reduced,” for such reasons as “substandard performance, delay, or benefits 26 that are not in proportion to the time spent on the case.” Id. at 1151. The reasonableness 27 determination is not governed by the lodestar method, because “[t]he lodestar method under- 1 ordinarily produces remarkably smaller fees than would be produced by starting with the 2 contingent-fee agreement.” Id. at 1150. However, “the court may require counsel to submit a 3 record of hours spent and a statement of normal hourly billing charges[,] . . . but only as an aid in 4 assessing the reasonableness of the fee.” Id. (emphasis in original). 5 Additionally, a § 406(b) fee award is offset by any award of EAJA fees. Thus, if the court 6 awards fees under both the EAJA and § 406(b), “the claimant’s attorney must refun[d] to the 7 claimant the amount of the smaller fee.” Gisbrecht, 535 U.S. at 796 (citation omitted). 8 IV. DISCUSSION 9 The Court finds counsel has met his burden to demonstrate the requested fees are 10 reasonable. First, counsel has presented a valid contingent fee agreement. Mot., Ex. B. Zieman 11 states his “practice has been exclusively related to Social Security Disability cases and all of my 12 work has been on a contingency basis.” Zieman Decl. ¶ 2. Second, he has supplied timesheets 13 documenting hours worked. Mot., Ex. C (timesheet), ECF No. 37-4. Zieman states he spent 14 35.45 hours working on this case, leading to an effective hourly rate of $1,136.70 per hour. 15 Zieman Decl. ¶ 10. Third, there is no evidence that counsel’s work was substandard or that the fee 16 award is disproportionate to the amount of work on the case, and the effective hourly rate is within 17 the range of what courts have approved under Section 406(b). See, e.g., Fernandez v. King, 2025 18 WL 277398, at *2 (N.D. Cal. Jan. 23, 2025) (awarding Zieman’s fee request that provides an 19 hourly rate of $1,145.67); Ainsworth v. Berryhill, 2020 WL 6149710, at *2 (N.D. Cal. Oct. 20, 20 2020) (awarding fee request that provides an hourly rate of $1,325.34); Williams v. Berryhill, 2018 21 WL 6333695, at *2 (C.D. Cal. Nov. 13, 2018) (awarding fee request that provides an hourly rate 22 of $1,553.36); Villa v. Astrue, 2010 WL 118454, at *1-2 (E.D. Cal. Jan. 7, 2010) (approving § 23 406(b) fees exceeding $1,000 per hour and noting: “Reducing § 406(b) fees after Crawford is a 24 dicey business”). Moreover, counsel obtained an excellent result for his client and took on the risk 25 of contingent representation. The Court is mindful of the Ninth Circuit’s instruction that “lawyers 26 are not likely to spend unnecessary time on contingency fee cases in the hope of inflating their 27 fees” because “[t]he payoff is too uncertain.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 1 || judgment as to how much time he was required to spend on the case.’” Costa v. Comm’r of Soc. 2 Sec, Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (quoting Moreno, 534 F.3d at 1112); see also 3 Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003) (“The courts recognize that 4 || basing a reasonableness determination on a simple hourly rate basis is inappropriate when an 5 attorney is working pursuant to a reasonable contingency contract for which there runs a 6 substantial risk of loss.”).
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 CRYSTAL A. LEWIS, Case No. 22-cv-05180-TSH
8 Plaintiff, ORDER GRANTING MOTION FOR 9 v. ATTORNEY'S FEES
10 LELAND DUDEK, Acting Commissioner Re: Dkt. No. 37 of the Social Security Administration, 11 Defendant. 12
13 I. INTRODUCTION 14 After Plaintiff Crystal Lewis brought this action for review of the Commissioner of Social 15 Security’s decision to deny benefits, the Court remanded the case, and the Commissioner 16 subsequently issued a decision in her favor. Lewis’s attorney, Richard Zieman, now seeks 17 $40,296 in attorney’s fees under section 206(b) of the Social Security Act, 42 U.S.C. § 406(b). 18 ECF No. 37. For the following reasons, the Court GRANTS the motion. 19 II. BACKGROUND 20 Lewis brought this action for judicial review under the Social Security Act, 42 U.S.C. § 21 405(g). On November 21, 2023, the Court granted Lewis’s summary judgment motion and 22 remanded for further proceedings. ECF No. 33. The Court subsequently granted the parties’ 23 stipulation for attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, 24 in the amount of $8,300. ECF No. 36. 25 On remand, the Commissioner granted Lewis’s application and awarded $161,184 in 26 retroactive benefits. Mot., Ex. A (Notice of Award), ECF No. 37-2; Zieman Decl. ¶ 6, ECF No. 27 37-5. Under a contingent-fee agreement, Lewis agreed to pay counsel up to 25% of any past-due 1 benefits award, which in this case would be $40,296. Mot., Ex. B (Fee Agreement), ECF No. 37- 2 3; Zieman Decl. ¶ 4. 3 III. LEGAL STANDARD 4 Attorneys handling social security proceedings may seek fees for their work under both the 5 EAJA and the Social Security Act. While the government pays an award pursuant to the EAJA, 6 an award pursuant to § 406 of the Social Security Act is paid out of a successful claimant’s past- 7 due benefits. See 42 U.S.C. § 406(b)(1)(A); Russell v. Sullivan, 930 F.2d 1443, 1446 (9th Cir. 8 1991), abrogated on other grounds by Sorensen v. Mink, 239 F.3d 1140, 1149 (9th Cir. 2001). 9 Section 406(b)(1) provides that a federal court that “renders a judgment favorable to a claimant . . . 10 who was represented before the court by an attorney” may grant the attorney “a reasonable fee for 11 such representation, not in excess of 25 percent of the total of the past-due benefits to which the 12 claimant is entitled by reason of such judgment.” In passing § 406, Congress sought to protect 13 attorneys from the nonpayment of fees, while also shielding clients from unfairly large fees. 14 Gisbrecht v. Barnhart, 535 U.S. 789, 805 (2002). 15 The Supreme Court in Gisbrecht explained that § 406(b) is meant “to control, not to 16 displace, [contingency] fee agreements between Social Security benefits claimants and their 17 counsel.” 535 U.S. at 793. Even if a fee request under § 406(b) is within the 25 percent statutory 18 limit, the attorney bears the burden of showing that the fee sought is reasonable, and the court is 19 responsible for serving as an “independent check” to ensure the reasonableness of the fee. Id. at 20 807. Following Gisbrecht, the Ninth Circuit has instructed that a § 406(b) fee request should be 21 assessed by “looking first to the contingent-fee agreement, then testing it for reasonableness.” 22 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (en banc) (quoting Gisbrecht, 535 U.S. at 23 808). The court should consider “the character of the representation and the results the 24 representative achieved,” and determine “whether the amount [of fees specified in the contingency 25 fee agreement] need be reduced,” for such reasons as “substandard performance, delay, or benefits 26 that are not in proportion to the time spent on the case.” Id. at 1151. The reasonableness 27 determination is not governed by the lodestar method, because “[t]he lodestar method under- 1 ordinarily produces remarkably smaller fees than would be produced by starting with the 2 contingent-fee agreement.” Id. at 1150. However, “the court may require counsel to submit a 3 record of hours spent and a statement of normal hourly billing charges[,] . . . but only as an aid in 4 assessing the reasonableness of the fee.” Id. (emphasis in original). 5 Additionally, a § 406(b) fee award is offset by any award of EAJA fees. Thus, if the court 6 awards fees under both the EAJA and § 406(b), “the claimant’s attorney must refun[d] to the 7 claimant the amount of the smaller fee.” Gisbrecht, 535 U.S. at 796 (citation omitted). 8 IV. DISCUSSION 9 The Court finds counsel has met his burden to demonstrate the requested fees are 10 reasonable. First, counsel has presented a valid contingent fee agreement. Mot., Ex. B. Zieman 11 states his “practice has been exclusively related to Social Security Disability cases and all of my 12 work has been on a contingency basis.” Zieman Decl. ¶ 2. Second, he has supplied timesheets 13 documenting hours worked. Mot., Ex. C (timesheet), ECF No. 37-4. Zieman states he spent 14 35.45 hours working on this case, leading to an effective hourly rate of $1,136.70 per hour. 15 Zieman Decl. ¶ 10. Third, there is no evidence that counsel’s work was substandard or that the fee 16 award is disproportionate to the amount of work on the case, and the effective hourly rate is within 17 the range of what courts have approved under Section 406(b). See, e.g., Fernandez v. King, 2025 18 WL 277398, at *2 (N.D. Cal. Jan. 23, 2025) (awarding Zieman’s fee request that provides an 19 hourly rate of $1,145.67); Ainsworth v. Berryhill, 2020 WL 6149710, at *2 (N.D. Cal. Oct. 20, 20 2020) (awarding fee request that provides an hourly rate of $1,325.34); Williams v. Berryhill, 2018 21 WL 6333695, at *2 (C.D. Cal. Nov. 13, 2018) (awarding fee request that provides an hourly rate 22 of $1,553.36); Villa v. Astrue, 2010 WL 118454, at *1-2 (E.D. Cal. Jan. 7, 2010) (approving § 23 406(b) fees exceeding $1,000 per hour and noting: “Reducing § 406(b) fees after Crawford is a 24 dicey business”). Moreover, counsel obtained an excellent result for his client and took on the risk 25 of contingent representation. The Court is mindful of the Ninth Circuit’s instruction that “lawyers 26 are not likely to spend unnecessary time on contingency fee cases in the hope of inflating their 27 fees” because “[t]he payoff is too uncertain.” Moreno v. City of Sacramento, 534 F.3d 1106, 1112 1 || judgment as to how much time he was required to spend on the case.’” Costa v. Comm’r of Soc. 2 Sec, Admin., 690 F.3d 1132, 1136 (9th Cir. 2012) (quoting Moreno, 534 F.3d at 1112); see also 3 Hearn v. Barnhart, 262 F. Supp. 2d 1033, 1037 (N.D. Cal. 2003) (“The courts recognize that 4 || basing a reasonableness determination on a simple hourly rate basis is inappropriate when an 5 attorney is working pursuant to a reasonable contingency contract for which there runs a 6 substantial risk of loss.”). As such, the requested fee is also reasonable because of the substantial 7 risk of loss inherently involved in representing Social Security disability claimants. 8 Once the Court determines the fee sought under § 406(b) is reasonable, it must account for 9 || the attorney’s fees paid by the Commissioner under the EAJA. Gisbrecht, 535 U.S. at 796. 10 || “Congress harmonized fees payable by the Government under EAJA with fees payable under § 11 406(b) out of the claimant’s past-due Social Security benefits” by requiring the claimant’s attorney 12 || to refund to the claimant the amount of the smaller fee up to the point where the claimant receives 13 100% of the past-due benefits. 7d. Here, the Court finds counsel’s § 406(b) request reasonable, 14 and therefore counsel shall refund to Lewis the $8,300 in EAJA fees previously awarded. See 3 15 Crooks v. Kijakazi, 2022 WL 1469519, at *2 (N.D. Cal. May 10, 2022) (finding § 406(b) request a 16 || reasonable and directing counsel to refund to client fees previously awarded under the EAJA). 2 17 Vv. CONCLUSION Z, 18 For the reasons stated above, the Court GRANTS counsel’s motion for attorney’s fees. 19 The Commissioner is directed to certify fees under 42 U.S.C. § 406(b) in the amount of $40,296, 20 || payable to Richard Zieman. Counsel is ORDERED to refund the $8,300 EAJA fee award to 21 Plaintiff Crystal Lewis. 22 IT IS SO ORDERED. 23 24 || Dated: April 14, 2025 25 TAA. THOMAS S. HIXSON 26 United States Magistrate Judge 27 28