United States District Court, D. Oregon
OPINION AND ORDER
F. BECKERMAN UNITED STATES MAGISTRATE JUDGE.
16, 2018, the Court reversed the decision of the Commissioner
of Social Security (“Commissioner”) and remanded
this case for an award of benefits. On October 18, 2018, the
Court granted in part Plaintiff's amended application for
attorney's fees pursuant to the Equal Access to Justice
Act (“EAJA”), 28 U.S.C. § 2412(d), and
awarded fees in the amount of $15, 956.02.
counsel now moves, pursuant to 42 U.S.C. § 406(b), for
attorney's fees in the amount of $28, 255.75. The
requested amount represents 25 percent of Plaintiff's
award of past-due Social Security benefits (Pl.'s Mem.
Supp. Attach. 6, at 3), and it will be offset by the $20,
079.18 (i.e., $4, 123.16 plus $15, 956.02) already received
under the EAJA. See Parrish v. Comm'r Soc.
Sec. Admin., 698 F.3d 1215, 1221 (9th Cir. 2015)
(“Where the same attorney represented a claimant at
each stage of judicial review, the court need merely offset
all EAJA awards against the § 406(b) award.”).
Commissioner defers to the Court's assessment of
Plaintiff's motion. (Def.'s Resp. at 2.) The Court must
perform an independent review to ensure that the award is
reasonable. See Gisbrecht v. Barnhart, 535 U.S. 789,
807 (2002) (explaining that “§ 406(b) calls for
court review of [contingent-fee] arrangements as an
independent check, to assure that they yield reasonable
results in particular cases”). For the reasons that
follow, the Court grants Plaintiff's counsel's motion
for § 406(b) fees and awards fees in the amount of $28,
§ 406(b), a court entering judgment in favor of a Social
Security disability insurance (“SSDI”)
“claimant who was represented by an attorney ‘may
determine and allow as part of its judgment a reasonable fee
for such representation, not in excess of 25 percent of the
total of the past-due benefits to which the claimant is
entitled by reason of such judgment.'” Crawford
v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009). A court
reviewing a request for § 406(b) fees “must
respect the primacy of lawful attorney-client fee agreements,
looking first to the contingent-fee agreement, then testing
it for reasonableness.” Id. (citations and
quotation marks omitted). In determining the reasonableness
of the requested attorney's fees, a court may consider a
number of factors, including, but not limited to, “the
character of the representation, the results achieved,
whether there was delay attributable to the attorney seeking
the fee, and whether the fee is in proportion to the time
spent on the case (to avoid a windfall to attorneys).”
Heward v. Berryhill, No. 6:11-cv-6333-SI, 2018 WL
523206, at *1 (D. Or. Jan. 22, 2018) (citations omitted).
with the authorities above, the Court begins its analysis by
reviewing the contingency fee agreement executed by Plaintiff
and her counsel. (SeePl.'s Mem. Supp. Attach.
4.) Plaintiff agreed to pay attorney's fees not to exceed
25 percent of any past-due benefits awarded, which is the
amount Plaintiff's counsel seeks in his motion.
See Heward, 2018 WL 523206, at *2 (noting
that 25 percent is “within the statutory
maximum”). The Court concludes that the requested fee
award is consistent with the terms of the contingency fee
Court also concludes that the requested fee award is
reasonable. Plaintiff's counsel achieved positive results
for his client by prevailing on two appeals to federal
district court, the latter of which resulted in an award of
past-due benefits. In addition, counsel's representation
was professional, and there was no significant delay
attributable to counsel. Finally, the requested $28, 255.75
fee does not result in a windfall to Plaintiff's counsel,
who spent approximately 80 hours on this appeal alone
(resulting in a $353/hour de facto billing rate).
See Heward, 2018 WL 523206, at *2 (noting that
judges in this district have approved de facto
hourly rates in excess of $1, 000).
reasons stated, the Court GRANTS Plaintiff's
counsel's motion for § 406(b) fees (ECF No. 40) and
awards fees in the amount of $28, 255.75, which represents 25
percent of Plaintiff's past-due benefits. When issuing
the § 406(b) check for payment to Plaintiff's
attorney, the Commissioner is directed to subtract the $20,
079.18 previously awarded under EAJA and send Plaintiffs
counsel the balance of $8, 176.57, less any applicable
administrative assessment allowed by statute.
IS SO ORDERED.
 In the interest of privacy, this
opinion uses only the first name and the initial of the last
name of the non-governmental party or parties in this case.
Where applicable, this opinion uses the same designation for