UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

SCOTT R. FRANK, 

Plaintiff, 

v. 

COMMISSIONER OF SOCIAL 

SECURITY, 

Defendant. 

ACOSTA, Magistrate Judge: 

Introduction 

Case No. 6:14:-cv-1434-AC 

OPINION AND ORDER 

Before the court is Scott Frank's ("Frank") unopposed Motion for Approval of Attorney Fees 

Pursuant to 42 U.S.C. § 406(b) ("Section 406(b )"). AlthoughFrankis the claimant in this case, the real 

party in interest to this motion is his attorney, Richard McGinty ("McGinty"). The Commissioner does not 

oppose the motion, but merely acts in a manner similar to "a trnstee for the claimant[]." Gisbrecht v. 

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Case 6:14-cv-01434-AC Document 29 Filed 11/09/16 Page 1 of 8
Barnhart, 535 U.S. 789, 798 (2002). Having reviewed the proceedings below and the amount offees 

sought, the co mt concludes McGintyis entitled to fees under Section 406(b) in the amount of$ l 8,3 78.19. 

Procedural Background 

Frank filed an application for Disability Insurance Benefits ("Benefits") on November 14, 2011, 

alleging an onset date of November 11, 2011. His applications were denied initially and on 

reconsideration. On May 15, 2013, an Adminish·ative Law Judge ("ALJ") issued an opinion in which he 

found Frank not disabled and, therefore, not entitled to Benefits. That decision became the final decision 

of the Commissioner when the Appeals Council denied Frank's request for review. 

Frank sought review of the Commissioner's decision by filing a complaint in this court on 

September 4, 2014. Frank alleged the ALJ erred in five respects: (1) failing to find Frank meets or equals 

Listing 4.02; (2) en"Oneously discrediting Frank's testimony; (3) erroneously discrediting the lay witness 

testimony; ( 4) improperly evaluating his functional abilities underthe New York Heait Association's rating 

system; and (5) failing to incorporate all of his limitations into the RFC. On October 19, 2015, this co mt 

issued an Opinion and Order finding the ALJ improperly rejected Frank's testimony and the lay witness 

evidence, and formulated an incomplete RFC (the "O&O"). Concluding that fmtherproceedings were 

required to reassess Frank's credibility, further develop the extent of his limitations, and procure guidance 

from a VE, the court reversed and remanded the ALJ's decision to the Agency. 

On January 7, 2016, the court granted the paities' stipulated motion for EAJA fees in the amount 

of$5,009.1 l. OnNovember2, 2016, Fraulcfiled the instant motion for attorney fees in the amount of 

$27,026.75 under Section 406(b). The Commissioner does not oppose the motion. 

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Discussion 

The parties do not dispute Frank is the prevailing pmiy in this matter. Additionally, the 

Commissioner does not challenge the amount McGinty requests as attorney fees. Nonetheless, because 

the Commissioner does not have a direct stake in the allocation of Prank's attorney fees, the court must 

ensure the calculation of fees is reasonable to preventMcGinty from potentially receiving a windfall. See 

Gisbrecht, 535 U.S. at 798 n.6 ("We also note thatthe Commissioner of Social Security ... has no direct 

financial stake in the answer to the§ 406(b) question."). 

After entering a judgment in favor of a Social Security claimant represented by counsel, a coUli 

"may detennine and allow as part ofits judgment a reasonable fee for such representation, not in excess 

of25 percent of the total of the past-due benefits to which the claimant is entitled by reason of such 

judgment." 42 U.S.C. § 406(b)(l)(A) (2015). A "twenty-five percent contingent-fee award is not 

automatic or even presumed; 'the statute does not create any presumption in favor of the agreed upon 

amount."' Dunnigan v. Astrue, No. CV 07-1645-AC, 2009 WL 6067058, at *7 (D. Or. Dec. 23, 

2009)(quoting Gisbrecht, 535 U.S. at 807 n.17), adopted2010 WL 1029809 (March 17, 2010). A 

Section 406(b) fee award is paid from the claimant's retroactive benefits, and an attorney receiving such 

an award may not seek any other compensation from the claimant. Dunnigan, 2009 WL 6067058, at *7. 

Accordingly, when a coUli approves both an EAJA fee and a Section 406(b) fee payment, the claimant's 

attorney must refund to the claimant the mnountofthe smaller of the two payments. Gisbrecht, 535 U.S. 

at 796. 

I. Fee Agreement. 

Under the Supreme CoUli's decision in Gisbrecht, the court first examines the contingent fee 

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agreement to determine whether it is within the statutory twenty-five percent cap. Frank and Mc Ginty 

executed a contingent-fee agreement, which provided ifMcGinty obtained payment of past-due benefits, 

Frank would pay him up to twenty-five percent of the past-due benefits awarded. (Mot. for Approval of 

Attorney Fees Pursuant to 42 U.S.C. §406(b), ECF No. 26 ("Pl.'s Mot."), Ex. 1.) The terms of this 

agreement are thus within the statute's limits. 

The next step is to confirm that the fee requested by counsel does not exceed the statute's 

twenty-five percent ceiling. This determination requires evidence of the retroactive benefits to be paid to 

Frank. McGinty provided a document from the Society Security Administration (the "Administration") 

entitled "Notice of Award," which details the retroactive benefits due Frank and states it has withheld 

$27,026. 75 in reserve to pay any attorney fees awarded by the com1, which represents twenty-five percent 

of the past due benefits. (Pl.'s Mot. Ex. 3, at 2.) McGinty seeks the full amount withheld by the 

Administration for attorney fees. After dete1mining the fee agreement and the amount requested are in 

accordance with the statutory limits, this court next turns to "its primary inquiry, the reasonableness of the 

fee sought." Dunnigan, 2009 WL 6067058, at *10. 

IL Reasonableness Factors. 

An order for an award of benefits should not be viewed in isolation, nor can it be presumed always 

to require afee award of twenty-five percent of a claimant's retroactive benefits award. Dunnigan, 2009 

WL 6067058, at* 12. If obtaining benefits always suppo11ed awarding fees forthe maximum amount 

provided for by statue, the other Gisbrecht factors and the trial courts' assigned task of'"making 

reasonableness determinations in a wide variety of contexts"' would be unnecessary. Id. (quoting 

Gisbrecht, 535 U.S. at 808). Here, McGinty seeks twenty-five percent of the past due benefits, the full 

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amount of the statutory cap. 

Counsel bears the burden to establish the reasonableness of the requested fee. Gisbrecht, 535 

U.S. at 807. While the court must acknowledge the "primacy oflawful attorney-client fee agreements," 

contingent fee agreements that fail to "yield reasonable results in pmticular cases"may be rejected. Id. at 

793, 807. The court must ensure a disabled claimant is protected from surrendering retroactive disability 

benefits in a disproportionate paymentto counsel. Crawfordv. Astrue, 586 F.3d 1142, 1151 (9th Cir. 

2009) (en bane) (citing Gisbrecht, 535 U.S. at 808). The four factors to be considered when evaluating 

the requested fee's reasonableness have been identified by the Ninth Circuit from the Gisbrecht analysis 

as: (I) the character of the representation, specifically, whether the representation was substandard; (2) 

the results the attorney achieved; (3) any delay attributable to the attorney seeking the fee; and ( 4) whether 

the benefits obtained were "not in proportion to the time spent on the case" and raise the specter the 

attorney would receive an unwmranted windfall. Crawford, 586F.3dat1151-53 (citations omitted). The 

Ninth Circuit, in Crffi1ford, also identified the risk inherent in contingency representation as an appropriate 

factor to consider in determining a Section 406(b) award. It focused the riskinquiiy, however, stating that: 

"the district co mt should look atthe complexity and risk involved in the specific case at issue to determine 

how much risk the firm assumed in taking the case." 586 F.3d at 1153. 

A. The Character of Representation. 

Substandm·d performance by a legal representative may warrant a reduction in a Section 406(b) 

fee award. Crav.ford, 5 86 F.3d at 1151. The record in this case provides no basis for a reduction in the 

requested Section 406(b) fee dueto the character ofMcGinty' s representation. In fact, McGinty prevailed 

on three of his five arguments. 

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B. Results Achieved. 

The court ordered a remand ofFrank' s claim, which was the result he asked for in his briefing. 

This was the best result available, and thus does not weigh against McGinty's requested award. 

C. Undue Delays. 

A court may reduce a Section 406(b) award for delays in proceedings attributable to claimant's 

counsel. Crawford, 5 86 F .3d at 1151. The reduction is appropriate "so that the attorney will not profit 

from the accwnulationofbenefits during the pendency of the case in court." Gisbrecht, 535 U.S. at 808 

(citation omitted). 

Here, Frank requested a 42-day extension to file his opening brief, which request the cowt granted 

thus allowing Frank to file his opening brief on June 8, 2015. The Commissioner timely filed its response 

briefon August 10, 2015, and Frank chose to not file a reply brief. The court issued its O&O on October 

19, 2015. Taking into account Frank's single extension of time, the time to resolve this case did not 

exceeded the nonnal range for Social Security cases. Accordingly, a reduction ofMcGinty' s fee request 

is unwarranted under this factor. 

D. Proportionality. 

Finally, a district court may reduce a Section 406(b) award if"benefits ... are not in proportion 

to the time spent on the case." Crm1ford, 586 F.3d at 1151 (citing Gisbrecht, 535 U.S. at 808). The 

Supreme Comt explained "[i]f the benefits are large in comparison to the amount of time counsel spent on 

the case, a downward adjustment is ... in order." Gisbrecht, 535 U.S. at 808. 

In this case, McGinty filed an eleven-page brief asserting five errors by the ALJ. The errors 

McGintyidentified were common to Social Security cases. McGinty argued the case should be remanded 

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to the Commissioner for futtherproceedings, and did not file a reply brief. He obtained the requested result 

on behalfofFrank, ultimately leading to an award ofretroactive benefits (based on the amount withheld 

by the Administration for attorney fees) of approximately $108, 107 .00. McGinty reports, and the time 

records confirm, he expended slightly more than twenty-six hours representing Frank in this matter. This 

time expenditure is within the twenty-to-forty-hour range Judge Mosman found to be a "reasonable amount 

of time to spend on a social security case that does not present particular difficulty." Harden v. Comm 'r, 

497 F. Supp. 2d 1214, 1215 (D. Or. 2007). 

McGinty currently seeks $27,026.75 in attorney fees for his representation of Frank before this 

court, which results in an effectively hourly rate of$ l ,023.74.1 This hourly rate is excessive and is not 

justified by the minimal briefing McGinty undertook to obtain a positive result for his client. Thus, a 

reduction of the requested fee is walTanted under this factor. 

Here, the court finds anawardof$18,378.19, or 17 percentofFrank's retroactive benefits, is 

walTanted under the circumstances, because it is propo1tional to the apparent effort expended in achieving 

the award. A 17 percent award results in an effective hourly rate of $696.14. This reduction from 

McGinty' s requested 25 percent award represents approximately a one-third reduction in the requested 

fees, which reduction the court finds commensurate with the commonplace nature of the arguments raised 

in briefing, and the decision to not file a reply brief. 

E. Risk. 

McGinty discusses the substantial risk of nonpayment and the significant delay in payment 

1 While McGinty avers that the hourly rate requested is $606. 73, he apparently fails to employ the 

correct denominator in calculating his hourly rate. (ECF No. 27, at 2.) 

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undertaken by Social Security practitioners. He does not, however, describe any risks unique to this case, 

which is the risk factor the Ninth Circuit in Crawford made clear the district cmnts are to consider. Thus, 

the court rejects McGinty' s argument that he should receive a higher fee award here to compensate him 

for the other cases in which he receives no award, because his argument is contrary to Crav.ford 's 

directive. Turning to the risk specific to this case, the co mt finds thatthis case presented a risk no greater 

than that presented by the great majority of Social Security cases in this district. Thus, some reduction of 

the requested fee is wananted. An award of 17 percent of Frank's retroactive benefits adequately 

compensates McGinty for the ordinary risk undertaken in this case. Having considered all of the 

reasonableness factors, the comt therefore finds an award of $18,378.19 is wananted under the 

circumstances of this case. 

Conclusion 

For the reasons stated, Frank's Motion for Approval of Attorney Fees Pursuant 42 U.S.C. 

§ 406(b) (ECFNo. ~~RANTED in PART, and the comtfinds McGinty is entitled to $18,378.19 

in attorney fees. Because he was previously awarded $5,009. I I in fees under the EAJ A, and $6,000 at 

the administrative level, Mc Ginty' s award is offset by those amounts and he is therefore awarded 

$7,369.08. 

IT IS SO ORDERED. 

DATED this 9·"'-1ray of November, 2016. 

0 

d States Magistrate Judge 

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