United States District Court, D. Oregon
OPINION & ORDER
PANNER, Senior District Judge.
counsel seeks an award of fees pursuant to 42 U.S.C. §
406(b) for his representation of Plaintiff Lawrence Lay in
this Social Security appeal. The Commissioner makes no
objection to the motion for attorney fees. For the reasons
discussed below, I GRANT the requested fees. Plaintiffs
counsel shall refund all previously awarded Equal Access to
Justice ("EAJA") fees to Plaintiff.
17, 2015, Plaintiff filed his initial complaint seeking
review of the final decision of the Commissioner. ECF No. 1.
On July 25, 2016, I issued an Opinion and Order reversing the
Commissioner's decision and remanding for immediate
payment of benefits. ECF Nos. 27, 28. On November 4, 2016, I
granted Plaintiffs stipulated application for $7, 090.63 in
EAJA attorney fees. ECF No. 32. Counsel acknowledges that he
may not retain both the EAJA fees and the requested §
406(b) fees. Counsel states that once he is awarded §
406(b) fees, he will refund the EAJA fee amount to Plaintiff.
The Commissioner does not object to this motion for attorney
§ 406(b), when a court has entered a judgment in favor
of a social security claimant with legal representation, the
court "may determine and allow as part of its judgment a
reasonable fee for such representation[.]" 42 U.S.C.
§ 406(b). However, the fee may not exceed "25
percent of the total of the past-due benefits to which the
claimant is entitled by reason of such judgment[.]"
Id. The § 406(b) award is paid from the
claimant's past due benefits and the attorney may not
seek any other compensation from the claimant. Gisbrecht
v. Barnhart, 535 U.S. 789, 795-96, 806-07 (2002). Thus,
the attorney may not keep both the EAJA and § 406(b)
fees. Id. at 796. Where the court first approves
EAJA fees and then a larger § 406(b) fee award, the
court will generally subtract the amount of the EAJA fees
from the total § 406(b) fee award or require that the
smaller of the two fees be refunded to the claimant.
Id.; see also Norwood v. Colvin, Case No.
3:14-cv-00520-SU, 2015 WL 5970397, at *1 (D. Or. Oct. 13,
when the Commissioner does not challenge the fee amount
sought by an attorney, the court has an affirmative duty to
assess the reasonableness of the requested
fees. Crawford v. Astrue, 586 F.3d
1142, 1149 (9th Cir. 2009). In making this assessment, courts
should respect "the primacy of lawful attorney-client
fee agreements, " but may reduce those agreed-upon fees
based on the character of the representation and the results
achieved. Gisbrecht, 535 U.S. at 793, 808. Courts
should first examine the fee agreement to ensure it does not
provide for fees in excess of twenty-five percent of past-due
benefits. Id. at 800, 807-08. Even if the fee
agreement does not exceed § 406(b)'s twenty-five
percent cap, the attorney still bears the burden of showing
that the fees yielded under the agreement are themselves
reasonable. Id. at 807; Crawford, 586 F.3d
may properly reduce the amount of attorney fees based on
factors which include: (1) substandard performance, (2)
"the results the representation achieved, " (3)
excessive delay, and (4) "benefits that are not in
proportion to the time spent on the case" by the
attorney seeking the fees. Crawford, 586 F.3d at
1151. The Ninth Circuit has also noted the risk involved in a
contingency representation may be an appropriate factor to
consider in determining a § 406(b) award-in particular
"the complexity and risk involved in the specific
case." Id. at 1152-53.
the Supreme Court has instructed against using the lodestar
method to calculate fees, a court may
"consider the lodestar calculation, but only as an
aid in assessing the reasonableness of the fee."
Crawford, 586 F.3d at 1151 (emphasis in original);
Gisbrecht, 535 U.S. at 808.
the standards set forth above to this case, I must first
examine the attorney-client fee agreement to ensure that its
terms do not provide for a fee in excess of the twenty-five
percent authorized by statute. In this case, the fee
agreement provides for the maximum § 406(b) fee of
twenty-five percent of past-due benefits. Mot. Att'y
Fees. Ex. 1. Counsel is not seeking an award in excess of the
amount provided by the fee agreement. Mot. Att'y Fees.
Ex. 2, at 3.
is no evidence of substandard attorney performance. Counsel
fully litigated this matter and achieved the best possible
result for Plaintiff. Nor is there any indication of
excessive delay. Counsel submitted documentation showing that
he spent thirty-seven hours on this case and he is seeking a
total award of $19, 169.00. Mot. Att'y Fees. Ex. 3. This
yields an hourly rate of approximately $518.08. This is not
unreasonable or out of line with fees awarded by other courts
in this district. See, e.g., AH v. Comm'r, Civ.
No. 3:10-cv-01232-CL, 2013 WL 3819867, at *3 (D. Or. July 21,
2013) (approving an effective hourly rate of $1000);
Quinnin v. Colvin, No. 1:12-cv-01133-SI, 2013 WL
5786988, at *3-4 (D. Or. Oct. 28, 2013) (finding that a
de facto hourly rate of $1000 for an attorney is a
"helpful guide" in assessing reasonable fee awards
in Social Security cases). I therefore conclude that the fee
sought is proportional and reasonable for the work performed
and the benefits awarded.
Motion for Attorney Fees, ECF No. 33, is GRANTED and
Plaintiffs counsel is awarded $19, 169.00 pursuant to 42
U.S.C. § 406(b). Plaintiffs counsel shall refund to