ORDER – Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DAVID W. DAVIS,

Plaintiff,

v.

CAROLYN W. COLVIN,

Commissioner of Social Security,

Defendant.

Case No. 6:14-cv-1910-SI

ORDER

On January 14, 2016, the Court remanded this matter for further proceedings. On 

February 3, 2016, the Court granted Plaintiff’s unopposed application for attorney’s fees 

pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, in the amount of 

$5,971.17.

Plaintiff’s counsel now moves for attorney’s fees of $19,642 pursuant to 42 U.S.C.

§ 406(b). ECF 36. This figure represents 25 percent of Plaintiff’s retroactive benefits. Plaintiff’s 

counsel requests an additional payment from Plaintiff of $13,670.83, which represents the 

requested $19,642 less the EAJA fees of $5,971.17 already received. Although Defendant does 

not object to the proposed award, the Court must perform an independent review to ensure that 

Case 6:14-cv-01910-SI Document 25 Filed 01/04/17 Page 1 of 4
ORDER – Page 2

the award is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). For the following 

reasons, Plaintiff’s counsel’s motion for fees is granted.

STANDARDS

Under 42 U.S.C. § 406(b), 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.” 

Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2009). Counsel requesting the fee bears the 

burden to establish the reasonableness of the requested fee. Gisbrecht, 535 U.S. at 807. The 

attorney’s fee award is paid by the claimant out of the past-due benefits awarded; the losing party 

is not responsible for payment. Gisbrecht, 535 U.S. at 802. 

A court reviewing a request for attorney’s fees under § 406(b) “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 Fintics v. Colvin, 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. There is no definitive list of factors for determining the 

reasonableness of the requested attorney’s fees, but courts may consider 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). See Id. at 808; Crawford, 586 F.3d at 1151-52. Although 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 

Case 6:14-cv-01910-SI Document 25 Filed 01/04/17 Page 2 of 4
ORDER – Page 3

at 1148; 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 non-contingency 

work as an aid in considering reasonableness of requested fees).

DISCUSSION

As prescribed by Gisbrecht and Crawford, the Court begins its analysis by reviewing the 

contingency fee agreement executed by Plaintiff and his counsel. ECF 13-2. Plaintiff agreed to 

pay attorney’s fees not to exceed 25 percent of the back benefits awarded, which is within the 

statutory maximum and is the amount Plaintiff’s counsel seeks in this motion.

The Court next considers the appropriate factors to determine whether a downward 

adjustment is necessary in this case, and finds that no downward adjustment is warranted. 

Plaintiff’s counsel achieved good results for Plaintiff (remand for further proceedings), the 

representation of Plaintiff was professional, there was no significant delay attributable to 

Plaintiff’s counsel, and the fee was in proportion to the time spent on the case and would not 

result in a windfall to Plaintiff’s counsel. Plaintiff’s counsel spent approximately 32.6 hours on 

the case. The effective hourly rate for the requested fee is, therefore, approximately $602.52, 

which is below effective hourly rates that have been approved in this district. See, e.g., Quinnin 

v. Comm’r, 2013 WL 5786988, at *4 (D. Or. Oct. 28, 2013) (approving de facto hourly rate of 

$1,240 for attorney time); Ali v. Comm’r, 2013 WL 3819867 (D. Or. July 21, 2013) (approving 

de facto hourly rate of $1,000); Breedlove v. Comm’r, 2011 WL 2531174 (D. Or. June 24, 2011) 

(approving de facto hourly rate of $1,041.84).

CONCLUSION

Plaintiff’s counsel’s motion for attorney fees pursuant to 42 U.S.C. § 406(b) (ECF 24) is 

GRANTED. Plaintiff’s counsel is entitled to $19,642 in § 406(b) fees, representing 25 percent of 

Plaintiff’s retroactive benefits recovery. When issuing the section 406(b) check for payment to 

Case 6:14-cv-01910-SI Document 25 Filed 01/04/17 Page 3 of 4
ORDER – Page 4

Plaintiff’s attorney, the Commissioner is directed to subtract the $5,971.17 previously paid to 

Plaintiff’s counsel and send Plaintiff’s attorney the balance of $13,670.83, less any applicable 

administrative assessment as allowed by statute.

IT IS SO ORDERED.

DATED this 4th day of January, 2017.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

Case 6:14-cv-01910-SI Document 25 Filed 01/04/17 Page 4 of 4