United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, CHIEF UNITED STATES DISTRICT JUDGE
Daniel Brink brought this action challenging the
Commissioner's final decision denying his application for
Supplemental Security Income. The Commissioner first denied
Mr. Brink's application in 2003. PL's Br.  at 3.
Mr. Brink then litigated the Commissioner's denial
through three district court cases, two Ninth Circuit
appeals, and five more hearings before an ALJ. See
id.; Order ; J. . After the second remand from
the Ninth Circuit, the Commissioner found Mr. Brink disabled
within the meaning of the Social Security Act as of January
2, 2001. Mot.  Ex. A at 2. This determination resulted in
the award of $101, 899.72 for past-due Social Security
benefits. Id. at 1. After each successful appeal,
Mr. Brink's attorneys were awarded attorney fees under
the Equal Access to Justice Act (EAJA). Mot.  Ex. D. In
total, $16, 296.29 in fees were awarded under the EAJA.
See Id. Mr. Brink's attorneys now move for an
award of $25, 474.81 in attorney fees pursuant to 42 U.S.C.
§ 406(b)(1), less the fees already awarded under the
EAJA. Mot.  at 1.
42 U.S.C. § 406(b)(1)(A), a court entering judgment in
favor of a social security disability insurance 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." "[T]he attorney for the
successful claimant must show that the fee sought is
reasonable for the services rendered." Gisbrecht v.
Barnhart, 535 U.S. 789, 807 (2002). It is the
attorney's burden to show that the fee sought is
"reasonable based on the facts of the particular
case." Crawford v. Astrue, 586 F.3d 1142, 1153
(9th Cir. 2009). The attorney's fee award is paid by the
claimant out of the past-due benefits awarded; the
Commissioner is not responsible for payment.Gisbrecht, 535 U.S. at 802.
reviewing a request for attorney fees under §
406(b)(1)(A) "must respect 'the primacy of lawful
attorney-client fee agreements,' 'looking first to
the contingent-fee agreement, then testing it for
reasonableness.'" Crawford, 586 F.3d at
1148 (quoting Gisbrecht, 535 U.S. at 793, 808).
Routine approval of fees pursuant to a contingency fee
agreement calling for the statutory maximum is, however,
disfavored. See, e.g., Fintics v. Colvin,
3:10-cv-01352-HU, 2013 WL 5524691, at *2 (D. Or. Oct. 2,
2013). Contingent fee agreements that fail to "yield
reasonable results in particular cases" may be rejected.
Gisbrecht, 535 U.S. at 807. Although not a
definitive list of factors, in testing the fee agreement for
reasonableness I must consider the character of the
representation, the results achieved, delay caused by the
attorney, and the amount of time spent on the case.
Id. at 808; Crawford, 586 F.3d at 1151-52.
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; see
also Gisbrecht, 535 U.S. at 808 (noting that courts may
consider counsel's record of hours spent representing
claimant and counsel's normal hourly billing rate for
noncontingency work as an aid in considering reasonableness
of requested fees).
to their agreement, Mr. Brink's attorneys request a fee
equal to twenty-five percent of the past-due benefits he was
awarded. Jones Decl.  Ex. 1. Although several different
totals are presented in the motion, Mr. Brink's attorneys
submitted an accounting of 105.85 hours spent on this case
since 2004. Mot.  Ex. C. Of this total, 29.1 hours of
work were performed by a law clerk and the remaining 76.75
hours were performed by attorneys. Id. Mr.
Brink's attorneys did not provide the rate they normally
charge for noncontingent-fee cases, as the firm "rarely
do[es] legal work on any basis other than contingent
fee." Mot.  at 2. Instead, they propose hourly rates
of $315 per hour for work performed by attorneys and $118.96
per hour for work performed by a law clerk. Mot.  at 5.
By way of comparison, Mr. Brink's attorneys state that
the average hourly rate for attorneys practicing
administrative law in Portland is $298. Mr. Brink's
attorneys also suggest that the average hourly
noncontingent-fee rate should be multiplied by 4.07 to
account for the rate of success in social security
cases. Mot.  at 3.
preliminary matter, I find that Mr. Brink's attorneys
achieved a favorable result and that there were no issues
concerning the character of the representation or any delay
caused by counsel. Given the numerous appeals necessary to
achieve a favorable result, I also find that the time spent
on this case was reasonable. Although I may consider the risk
of nonpayment inherent in contingency representation, Mr.
Brink's attorneys failed demonstrate any risk that was
particular to this case. Crawford, 586 F.3d at 1153.
However, this failure is harmless for two reasons. First, Mr.
Brink's attorneys request $315 per hour for work
performed by attorneys in this case, which is $ 17 per hour
more than the average rate for attorneys practicing
administrative law in noncontingent cases. I find this modest
premium to be reasonable for the risk assumed in this case.
The requested rate of $ 118.96 for work performed by a law
clerk is also reasonable-courts in the Ninth Circuit have
found paralegal rates to be reasonable when they are
approximately half the rate charged by attorneys. See
Quinnin v. Colvin, No. 1:12-CV-01133-SI, 2013 WL
5786988, at *3 (D. Or. Oct. 28, 2013). While not per se
reasonable, that rule of thumb yields a reasonable result in
this case. The second reason that Mr. Brink's
attorneys' request should not be reduced, despite failing
to demonstrate the risk inherent in this case, is that the
requested hourly rate is actually less than $315. Assuming
that the rate for the 29.1 hours performed by a law clerk is
$118.96 per hour, for a total of $3, 461.74, Mr. Brink's
attorneys request $22, 013.07 for the remaining 76.75 hours
of work. That is a rate of $286.82 per hour for work
performed by attorneys in this case, which is less than the
average rate for Portland attorneys practicing administrative
law in noncontingent cases.
reasons stated above, the Motion for Attorney Fees Under 42
U.S.C. § 406(b)  is GRANTED. Mr. Brink's
attorneys are awarded $9, 178.52, which is the requested
amount of $25, 474.81 less the $16, 296.29 in fees already
awarded under the EAJA.
 For this reason, I give little weight
to the Commissioner's failure to object to the requested
award. See Mot.  at 2.
 Using data provided by the National
Organization of Social Security Claimants'
Representatives (NOSSCR), Mr. Brink's attorneys arrive at
this number by concluding that past-due benefits are only
awarded in 24.56% of cases brought in federal court. Mot.
 at 3 n.5. Assuming that contingent-fee work should be
compensated at the average rate for noncontingent-fee work,
Mr. Brink's attorneys suggest multiplying the average
hourly rate for noncontingent work by 4.07 (100/24.56 =
4.07). While it is not necessary in this case to determine an
appropriate multiplier in order to compare the fee requested
to an amount calculated using noncontingent rates under the
lodestar approach, the method by which Mr. Brink's
attorneys arrived at multiplier is contrary to the Ninth
Circuit's decision in Crawford. Rather than
assessing a particular firm's success rate-or, as
suggested here, the success rate of all social ...