IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

BOYD C. STONE, 

Plaintiff, 

v. 

COMMISSIONER, SOCIAL SECURITY 

ADMINISTRATION, 

Defendant. 

CLARKE, Magistrate Judge. 

Civ. No. 6: 14-cv-01007-CL 

ORDER 

Currently before the Court is Plaintiff Boyd Stone's motion (#42) for $38,195.48 in 

attorney's fees pursuant to 42 U.S.C. § 406(b). This amount represents 25 percent of Stone's 

retroactive benefits, which total $152, 781. 92. Although Stone is the claimant in this case, his 

attorneys, Kathryn Tassinari and Drew Johnson, are the real parties in interest to this motion. The 

Commissioner of the Social Security Administration has "no direct financial stake" in this 

motion and offers no opposition. Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002). Having 

reviewed the past proceedings and pending petition, the Court concludes Tassinari and Johnson 

are entitled to $27,500.75 in section 406(b) fees, less the $5,057.65 already received pursuant to 

the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. 

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PROCEDURAL BACKGROUND 

On June 23, 2014, Stone filed a Complaint (#1) to obtain judicial review of the final 

decision of the Commissioner of the Social Security Administration ("Commissioner") denying 

his application for Social Security disability benefits. On August 26, 2015, this Court remanded 

(#37) Stone's case for an immediate payment of benefits. On November 25, 2015, the Court 

granted (#41) Stone's stipulated application (#40) for EAJA fees in the amount of $5,057.65. On 

January 28, 2016, Tassinari and Johnson filed their present motion (#42) for fees pursuant to 42 

U.S.C. § 406(b). The Commissioner does not oppose counsels' request. 

LEGAL STANDARD 

Upon entering judgment in favor of a Social Security claimant who was represented by 

an attorney, a Court "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." 42 U.S.C. § 406(b)(l)(A). Section 406(b) 

expressly requires any attorney's fee awarded under that section to be payable "out of, and not in 

addition to, the amount of [the] past due benefits." Id. 

In Gisbrecht, 535 U.S. at 807, the Supreme Court clarified that section 406(b) "does not 

displace contingent-fee agreements as the primary means by which fees are set for successfully 

representing Social Security benefits claimants in court." Courts must approve section 406(b) fee 

determinations by, first, determining whether a fee agreement has been executed and, then, 

testing it for reasonableness. Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (citing 

Gisbrecht, 535 U.S. at 808). "Agreements are unenforceable to the extent that they provide for 

fees exceeding 25 percent of the past-due benefits." Gisbrecht, 535 U.S. at 807. Even "[w]ithin 

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the 25 percent boundary, [however,] ... the attorney for the successful claimant must show that 

the fee sought is reasonable for the services rendered." Id. 

DISCUSSION 

I. Contingency Fee Agreement 

Under Gisbrecht, 535 U.S. at 807-08, the Court's first duty when considering whether to 

approve a contingency fee agreement is to determine whether it is within the statutory 25 percent 

cap. Here, Stone and Johnson executed an agreement (#42-2) providing that Johnson shall 

"charge and receive as a fee for his work at the federal court level an amount equal to twentyfive percent (25%) of the past-due benefits" awarded to Plaintiff. The Commissioner sent notice 

(#42-1, at 2) to Stone that it had set aside the portion of past due benefits that his lawyer may 

lawfully claim. Plaintiffs counsel now seeks that exact amount: $38,195.48. Therefore, both the 

agreement and fee demand comply with the maximum fee allowed by statute. 

II. Reasonableness 

Next, the Court must determine whether application of the fee agreement yields 

"reasonable results" under the circumstances. Gisbrecht, 535 U.S. at 807. In making this 

determination, the Court must recognize the "primacy of lawful attorney-client fee agreements." 

Id. at 793; Crawford, 586 F.3d at 1151 (the Supreme Court has provided a "clear directive" that a 

district court should begin its analysis with examining the attorney-client fee agreement). 

However, although a contingency agreement should be given significant weight in fixing a fee, 

the Court can depart from it if it produces unreasonable results. Gisbrecht, 535 U.S. at 808. 

"[D]espite the primacy afforded to the fee contract created between counsel and client[,] ... 

courts are empowered to exercise discretion to ensure that the claimant is protected from having 

to surrender retroactive disability benefits in a disproportionate payment to counsel." Mansfield 

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v. Astrue, No. 07-cv-1427-HA, 2011 WL 2214739, at *3 (D. Or. June 6, 2011), aff'd sub nom. 

Mansfieldv. Comm'r ofSoc. Sec. Admin., 509 F.App'x 643 (9th Cir. 2013). "Routine approval of 

the statutory maximum allowable fee should be avoided in all cases." Lewis v. Sec'y of Health & 

Human Servs., 707 F.2d 246, 250 (6th Cir. 1983) (noting that a reasonable fee will often "be 

much less than the statutory maximum"); Dunnigan v. Comm 'r, No. Cv. 07-1645-AC, 2009 WL 

6067058, *6 (D. Or. December 23, 2009) ("[A] twenty-five percent contingent-fee award is not 

automatic or even presumed."). The burden rests with Plaintiffs counsel to establish the 

requested fee's reasonableness. Gisbrecht, 535 U.S. at 807. 

In Crawford, 586 F.3d at 1151-53, the Ninth Circuit issued an en bane decision 

articulating four factors derived from the Gisbrecht analysis that district courts should use in 

determining whether a reduction from the contingent-fee agreement is appropriate: (1) the 

character of the representation; (2) the results 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 that the attorney would receive an unwarranted windfall. The 

Court considers each factor in tum. 

A. Character of the Representation 

Substandard performance by a legal representative may warrant a reduction in a§ 406(b) 

fee award. Gisbrecht, 535 U.S. at 808; Crawford, 586 F.3d at 1151. In Gisbrecht, 535 U.S. at 

808, the Supreme Court cited Lewis as an example of inferior representation requiring a 

reduction in recovery. There, counsel missed briefing deadlines, submitted court filings with "no 

case citation or any other manifestation of legal research," and overbilled for the time it took to 

prepare those meager filings. Lewis, 707 F.2d at 249. In this case, there is no evidence that 

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Plaintiffs counselors engaged in any such misconduct. Thus, no reduction in fees is warranted 

under this factor. See Crawford, 586 F.3d at 1151. 

B. Results Achieved 

In response to Plaintiffs opening brief, the Commissioner conceded error and moved to 

remand for further proceedings. This narrowed the focus of Plaintiffs reply brief to the question 

of whether further administrative proceedings were necessary. Plaintiff asserted that they were 

not. The Court agreed and remanded for an immediate award of benefits. This was an excellent 

result for Plaintiff. 

C. Delay 

The Court may reduce a § 406(b) award for delays in proceedings attributable to the 

claimant's counsel. Gisbrecht, 535 U.S. at 808; Crawford, 586 F.3d at 1151. In Gisbrecht, the 

Supreme Court reasoned that a reduction is appropriate if the requesting attorney inappropriately 

caused delay in the proceedings to ensure the attorney "will not profit from the accumulation of 

benefits" while the case is pending. Gisbrecht, 535 U.S. at 808 (citing Rodriguez v. Bowen, 865 

F.2d 739, 746-47 (6th Cir. 1989)). This is not a case where, due to excessive delay attributable to 

Plaintiffs attorneys, Plaintiffs back benefits accumulated during its pendency. The Court 

granted the attorney's two unopposed motions ( # 13, # 16) for extension of time to file their 

opening brief and one unopposed motion (#32) for extension of time to file their reply brief. In 

total, these motions extended the briefing timeline by two months and one week. No evidence in 

the record suggests that these extensions were intended, even in part, to unfairly delay the case. 

Accordingly, reduction of the fee request is not warranted under this factor. 

I I I 

I I I 

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D. Proportion 

The Court may reduce counsel's § 406(b) award if "benefits ... are not in proportion to 

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

Gisbrecht, 535 U.S. at 808, the Supreme Court explained that "[i]f the benefits are large in 

comparison to the amount of time counsel spent on the case, a downward adjustment is ... in 

order." 

Plaintiffs attorneys submitted time records indicating that they expended 30.85 hours in 

their effort to win Plaintiff $152,781.92 in retroactive benefits. Pl.'s Mot., at 2-3. This amount of 

time falls squarely within the twenty- to forty-hour time range that Chief Judge Mosman found 

"reasonable [ ] 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). Therefore, the Court concludes 

that Tassinari and Johnson expended a reasonable amount of time on this case and, what's more, 

that the case was not particularly complex or challenging. A minor reduction, however, is in 

order. Counselors' time log includes 0.40 hours spent discussing eviction with Plaintiff over the 

phone. The Court reduced this time from Plaintiffs EAJA fee request because it was unclear 

how eviction related to Plaintiffs social security appeal. Tassinari and Johnson offer no 

explanation for its continued inclusion in their log. As such, the Court will similarly reduce their 

current time reporting to 30.45 hours. 

Counsels' fee request, if granted, would result in an effective hourly rate of $1,254.3 7. 

This is at the high end of requests upheld by this district. Plaintiffs attorneys cite three cases to 

demonstrate that their requested rate is in line with District of Oregon precedent. First, in 

Thommen v. Colvin, District Judge Simon approved an effective hourly rate of approximately 

$900. No. 3:12-CV-01625-SI, 2014 WL 3478727, at *2 (D. Or. July 11, 2014). Judge Simon's 

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order did not discuss the complexity of the case. There is no indication that the Commissioner 

simplified the issues in dispute in Thommen by agreeing to a remand like it did here. Second, in 

Ali v. Comm 'r, Soc. Sec. Admin., this Court approved an effective hourly rate of $1,000. No. 

3:10-CV-01232-CL, 2013 WL 3819867, at *3 (D. Or. July 21, 2013). Again, Ali is 

distinguishable because the Commissioner disputed more than the proper type of remand. 

Moreover, the claimant's attorney independently attempted to attain the requisite proportionality 

by reducing his request under the contingency fee agreement from 25 percent to 14 percent. Id 

The third proffered case, Quinnin v. Colvin, is the most similar to the request at hand. There, "the 

only disputed issue before [the] Court was whether to remand for further proceedings or remand 

for an award of benefits." Quinnin v. Colvin, No. 1:12-CV-01133-SI, 2013 WL 5786988, at *3 

(D. Or. Oct. 28, 2013). Given the "largely uncontested" nature of the case, Judge Simon reduced 

the attorney's fee request to 15 percent of back benefits. Id. at *4. Because counsel billed the 

claimant for 13.2 hours of paralegal time and just 1.5 hours of attorney time, this reduction 

resulted in a de factor hourly attorney rate of $1,240. Id. 

Plaintiffs counsels' opening brief successfully compelled the Commissioner to agree to a 

remand. Their reply brief convinced the Court to remand for immediate payment of benefits. 

They represented their client well. However, as in Quinnin, their work on this largely nonadversarial case is not proportionate to their application for the maximum permissible percentage 

of Stone's significant back benefits. See Mansfield, 2011 WL 2214739, at *4-5 (award of 25 

percent of plaintiffs $123,095.80 in retroactive benefits for 62.95 hours of work is a 

disproportionate windfall); Stokes v. Astrue, No. CIV.08-1209-PK, 2010 WL 2507532 (D. Or. 

June 14, 2010), rev 'd on other grounds and remanded sub nom. Stokes v. Comm 'r of Soc. Sec. 

Admin., 432 F.App'x 672 (9th Cir. 2011) (22 percent of $67,032 in back benefits is not 

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proportionate recovery where attorney spent 32.5 hours litigating a case that was largely 

uncontested); Dunnigan, 2009 WL 6067058, at* 14 ("work performed consistent with an average 

case supports reduction from the twenty-five percent maximum"). 

An imbalanced award, like the one requested by Plaintiffs counselors, may be justified 

for a case that is particularly complex or risky. When applying this logic, the Ninth Circuit 

instructs district courts to "look at the complexity and risk involved in the specific case," not 

risks generally associated with social security litigation. Crawford, 586 F.3d at 1153 (emphasis 

added). Stone's attorneys largely overlook this instruction. They argue that their request is 

reasonable given the "substantial risk of non-payment" and "significant delay" inherent in social 

security appeals. Pl. 's Mot., at 5. The Court agrees that non-payment and delay are real risks in 

cases like this one. However, these generalized issues do not quell the Court's concerns 

regarding the proportionality of this specific case. Plaintiffs attorneys note that "[t]aking this 

case was a particular risk to Plaintiffs counsel because of potential inconsistencies in the 

record." Pl.'s Mot., at 5. However, they do not identify these inconsistencies or explain how they 

enhanced their exposure. As such, the Court has no basis to conclude this case was unique or 

complex. Dunnigan, 2009 WL 6067058, at* 14. Given the largely non-adversarial nature of this 

case, the lack of evidence of particularized risks, and the significant retroactive benefits 

recovered, the 25 percent statutory maximum requested by Plaintiffs counsel would be a 

disproportionate windfall to counsel and a disproportionate loss of benefits for the disabled 

client. See Mansfield, 2011 WL 2214739, at *5. Reduction from the twenty-five percent 

maximum is warranted under this factor. 

I I I 

I I I 

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III. Fee Calculation 

To determine the appropriate reduction, the Court looks to analogous cases. As noted 

above, Quinnin was a similarly uncomplicated case. The only contested issue was whether to 

remand for further proceedings or immediate payment. Given the cases' simplicity, Judge Simon 

reduced counsel's fee request to 15 percent of back benefits amount. In Gerding v. Comm 'r, an 

attorney requested a 25 percent award for securing a stipulated remand after filing an opening 

brief. No. CV-08-633-PK, 2010 WL 4116604, at *4 (D. Or. Sept. 3, 2010). District Judge 

Haggerty concluded counsel's request would constitute a disproportionate windfall and reduced 

the award to 13 percent of the claimant's retroactive benefits. Oerding v. Astrue, No. CIV. 08-

633-PK, 2010 WL 4116570, at *4 (D. Or. Oct. 18, 2010). Judge Haggerty based his reduction on 

"the generally non-adversarial posture of the Commissioner after plaintiffs Opening Brief was 

filed," "'the lack of any further federal litigation after the parties' stipulated remand[,]" the fact 

that the case "was significantly less risky" than the average social security claim, and counsel's 

"failure to provide any information as to his ·pre-litigation assessment of the risk presented' by 

plaintiff's claim[.]" Id. at *4. The Ninth Circuit affirmed in Gerding v. Comm'r of Soc. Sec. 

Admin., 467 F.App'x 643 (9th Cir. 2012). Following the reasoning set forth in Quinnin and 

Gerding, the Court concludes that a reasonable fee award is $27,500.75, 18 percent of Stone's 

retroactive benefits. This is an effective hourly rate of $903.14. 

IV. Conclusion 

Plaintiff's counsels' motion for attorney's fees pursuant to 42 U.S.C. § 406(b) is 

GRANTED IN PART. Plaintiff's counsel is entitled to $27,500.75 in § 406(b) fees. After 

subtracting the $5,057.65 EAJA fee award previously granted to Plaintiff's attorneys, the final 

fee award is $22,443.09. The Commissioner shall pay fees in that amount to Plaintiff's lawyers 

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out of the sum withheld by the Commissioner from Plaintiffs benefits and shall pay the 

remainder to Plaintiff. 

<-.) 

It is SO ORDERED and DATED this _o ___ day of March 2016. 

MARK D. CLARKE 

United States Magistrate Judge 

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