{"id":373,"date":"2026-01-06T12:00:00","date_gmt":"2026-01-06T12:00:00","guid":{"rendered":"https:\/\/california.shuster.info\/?p=373"},"modified":"2026-01-06T12:00:00","modified_gmt":"2026-01-06T12:00:00","slug":"ho-kijakazi-social-security-406b-attorney-fee","status":"publish","type":"post","link":"https:\/\/california.shuster.info\/?p=373","title":{"rendered":"Ho v. Kijakazi \u2014 N.D. Cal. approves $42,800 Social Security \u00a7 406(b) fee at $1,350\/hour effective rate"},"content":{"rendered":"
\n
\n
Case<\/dt>\n
Lanh Dang Ho v. Kilolo Kijakazi, et al.<\/dd>\n
Court<\/dt>\n
U.S. District Court \u2014 Northern District of California<\/dd>\n
Date Decided<\/dt>\n
2026-01-06<\/dd>\n
Docket No.<\/dt>\n
1:23-cv-03727<\/dd>\n
Status<\/dt>\n
Unreported \/ Non-Citable<\/dd>\n
Topics<\/dt>\n
Social Security disability; 42 U.S.C. \u00a7 406(b); contingency fee agreement; Gisbrecht v. Barnhart<\/em>; Crawford v. Astrue<\/em>; reasonableness review; Equal Access to Justice Act offset<\/dd>\n<\/dl>\n<\/div>\n

Background<\/h2>\n

Lanh Dang Ho applied for Social Security disability benefits and was denied at the initial agency level, on reconsideration, before an administrative law judge, and on Appeals Council review. He then sued in the Northern District of California to obtain judicial review under 42 U.S.C. \u00a7 405(g). Magistrate Judge Robert M. Illman granted Ho\u2019s motion for summary judgment, remanded the case, and awarded $7,984.45 in attorney fees under the Equal Access to Justice Act.<\/p>\n

On remand, the Commissioner granted Ho\u2019s application and awarded $200,027.00 in past-due benefits. Under his contingency-fee agreement, Ho had agreed to pay counsel up to 25% of any past-due benefits resulting from a favorable disability decision. The Notice of Award withheld $50,006.75 \u2014 exactly 25% \u2014 to pay attorney fees. Counsel Francesco Benavides moved for $42,800.00 in fees under 42 U.S.C. \u00a7 406(b) (less than the 25% maximum), reflecting work he and his firm performed on the federal-court phase. The Commissioner took no position but asked the court to assess reasonableness.<\/p>\n

The Court’s Holding<\/h2>\n

The court granted the motion in full and awarded $42,800 in \u00a7 406(b) fees, payable from Ho\u2019s withheld past-due benefits, with counsel ordered to refund the prior EAJA award to Ho.<\/p>\n

Following Gisbrecht v. Barnhart<\/em> and the Ninth Circuit\u2019s en banc decision in Crawford v. Astrue<\/em>, the court applied the contingency-fee-first framework: it began with the contingency-fee agreement, then tested it for reasonableness. The 25% contingency was within the statutory maximum, and the requested fee \u2014 about 21.4% of past-due benefits \u2014 was below that ceiling. There was no evidence of substandard performance; counsel\u2019s work secured a six-figure benefits award after multiple agency denials. Ho was given notice and did not object.<\/p>\n

On the effective hourly rate, counsel reported 31.7 hours of work, producing an effective rate of roughly $1,350.15 per hour. The court found that, although more than five times the EAJA rate, the figure was within the range routinely approved in the Ninth Circuit for Social Security \u00a7 406(b) work \u2014 citing Garcia v. O\u2019Malley<\/em> (E.D. Cal. 2024) (approving an effective hourly rate of $2,307.69), Ainsworth v. Berryhill<\/em> (N.D. Cal. 2020) (approving $1,325.34), and Hearn v. Barnhart<\/em> (N.D. Cal. 2003) (approving a 3x multiplier on the typical hourly rate). The lodestar method, the court noted, \u201cunder-compensates attorneys for the risk they assume\u201d in this docket and is not the governing test under Crawford<\/em>.<\/p>\n

The court also emphasized the substantial contingency risk that counsel had assumed. Ho\u2019s claims had already been denied multiple times before counsel took the case. Citing Crawford<\/em>, Ainsworth<\/em>, and Lewis v. Dudek<\/em>, the court treated that risk as an independent ground supporting the requested fee. Following Gisbrecht<\/em>\u2019s offset rule, the court ordered counsel to refund the previously awarded $7,984.45 EAJA payment to Ho so that the client would receive the benefit of the smaller of the two awards.<\/p>\n

Key Takeaways<\/h2>\n