syndromes. Plaintiff's disability claim had already been denied in whole or in part at several levels of agency review prior to the initiation of the civil action in federal court.
Third, any reliance on a non-contingent rate without taking into account the contingent nature of this 42 U.S.C. § 406(b) fee could undercompensate Mr. Sackett. As Gisbrecht makes clear, § 406(b) fees are, by law, contingent fees. A Title II plaintiff's attorney like Mr. Sackett may only collect fees from plaintiffs who ultimately receive benefits. Petitioner has shown that an attorney with his experience in the San Francisco bay area earns approximately $300 per hour on a non-contingent basis for legal services. In addition, Mr. Sackett has practiced law for more than 26 years. Since 1980, he has exclusively practiced in the area of Social Security law and has earned a reputation for expertise on the subject. Because attorneys like Mr. Sackett contend with a substantial risk of loss in Title II cases, an effective hourly rate of only $450 in successful cases does not provide a basis for this court to lower the fee to avoid a "windfall." See Gisbrecht, 122 S.Ct. at 1828. Petitioner agreed to a contingency fee arrangement in which he assumed the risk of receiving nothing for his time and effort if plaintiff was unsuccessful. "Congress has indicated the permissibility, within limits, of rewarding attorneys for assuming the risk of going uncompensated for representing Social Security claimants." Dodson v. Commissioner of Social Security, 2002 WL 31927589, *2 (W.D.Va. 2002).
Since Gisbrecht was handed down by the Supreme Court, the district courts generally have been deferential to the terms of contingency fee contracts in § 406(b) cases, accepting that the resulting de facto hourly rates may exceed those for non contingency-fee arrangements. See, e.g., Dodson, 2002 WL 31927589 (granting fee award of $5,000, equating to $694.44 per hour); Hussar-Nelson v. Barnhart, 2002 WL 31664488 (N.D.Ill. 2002) (awarding fee of $19,425.25, representing 25% of past due benefits, equivalent to approximately $393 per hour); Martin v. Barnhart, 225 F. Supp.2d 704 (W.D.Va. 2002) (awarding $10,189.50 for 16.82 hours of court-related work which represented over $605 per hour); Thompson v. Barnhart, 240 F. Supp.2d 562 (W.D.Va. 2003) (awarding fee of $9,447.25, representing 25% of past due benefits, and equating to a hypothetical rate of $187.55 per hour for work done before both the court and Commission); Roark v. Barnhart, 221 F. Supp.2d 1020, 1026 (W.D.Mo. 2002) (awarding $2,729.78 of contingent fees to plaintiff's counsel for 13.25 hours on case or $206.02 per hour, but paralegal fees not awarded); Coppett v. Barnhart, 242 F. Supp.2d 1380 (S.D.Ga. 2002) (granting $6,554.12 in attorney fees, reflecting 18.7 hours of work, at a hypothetical rate of $350.49 per hour). The courts recognize that basing a reasonableness determination on a simple hourly rate basis is inappropriate when an attorney is working pursuant to a reasonable contingency contract for which there runs a substantial risk of loss.
Fourth, the value of this case to Plaintiff is substantially more than the past-due benefits on which the fee is based. Based on the judgment, Mr. Hearn will receive not only past-due benefits, but also ongoing Title II benefits until he dies, reaches retirement age, or becomes no longer disabled. Nor, in computing the section 406(b) fee, is the value of health care benefits included.
Fifth, Mr. Sackett devoted considerable time and careful attention to Mr. Hearn's case. This court has already ruled that the more than 55 hours expended in the action was reasonable. See Order Granting Plaintiff's Motion for Attorney's Fees at 3-4 (May 2, 2002). Petitioner's challenge to the ALJ's determination at step five was central to the court's decision to remand the case to the Commissioner.
Finally, Mr. Hearn has submitted a declaration stating that he concurs with the fee request and asks the court to approve it in its entirety. There is no basis for the court to question the sincerity of this declaration.
For the reasons set forth above, the Court awards Plaintiff's attorney, Harvey Sackett, the sum of $25,132.50 in fees under 42 U.S.C. § 406(b) which represents about 18.2% of Plaintiff's past due benefits. The parties do not dispute that this § 406(b) award must be offset by the $8,725.99 of attorney's fees already granted under the EAJA, resulting in a net § 406(b) fee of $16,406.51. See Mem. P's and A's at 2:17-23; 28 U.S.C. § 2412; Gisbrecht, 122 S.Ct. at 1822.
Petitioner's motion for attorney's fees is GRANTED. Petitioner Harvey Sackett is hereby awarded $25,132.50 in attorney's fees to be paid out of the sums withheld by the Commissioner from Mr. Hearn's benefits. Mr. Sackett shall reimburse Plaintiff in the amount of $8,725.99, previously paid by the Government under the EAJA.
IT IS SO ORDERED.