PAGE 1 – ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

REBEKAH CARROLL,

Plaintiff,

v.

NANCY A. BERRYHILL, Deputy 

Commissioner for Operations, performing the 

duties and functions not reserved to the 

Commissioner of Social Security,

Defendant.

Case No. 3:15-cv-0274-SI

ORDER

Michael H. Simon, District Judge.

On January 7, 2016, the Court remanded this case for further proceedings, based on the 

stipulation of the parties. On February 3, 2016, the Court granted Plaintiff’s stipulated 

application for attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. 

§ 2412, in the amount of $2,169.19.

Plaintiff’s counsel now moves for attorney’s fees of $10,845.50 pursuant to 42 U.S.C. 

§ 406(b). If awarded the requested § 406(b) attorney’s fees, Plaintiff’s counsel will reimburse 
PAGE 2 – ORDER

Plaintiff the $2,169.19 EAJA fee award.

1

 Plaintiff’s retroactive benefits totaled $67,382. 

Accordingly, the requested § 406(b) attorney’s fees represent approximately 16 percent2of 

Plaintiff’s retroactive benefits. Defendant does not object to the requested fees.

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 v. Barnhart, 535 U.S. 789, 

807 (2002). 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 

 

1

Plaintiff’s counsel has also requested a $6,000 agency fee award under 42 U.S.C. 

§ 406(a). Fee awards under § 406(a), however, are not considered by the district court in 

analyzing fee requests under § 406(b). See Clark v. Astrue, 529 F.3d 1211(9th Cir. 2008).

2

Plaintiff asserts that her requested fees are 25 percent of Plaintiff’s retroactive benefits, 

but she includes the $6,000 § 406(a) agency fee in this calculation. The Court does not, however,

consider the § 406(a) fee when calculating the percentage of Plaintiff’s retroactive benefits 

represented by the requested § 406(b) fees. Clark, 529 F.3d at 1218.
PAGE 3 – ORDER

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 

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 25-1. Plaintiff agreed to 

pay attorney’s fees not to exceed 25 percent of the back benefits awarded. Here, the requested 

fee award is approximately 16 percent and is well under the statutory maximum and the amount 

agreed upon in Plaintiff’s contingency fee agreement. 

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

adjustment is necessary in this case. Plaintiff’s counsel achieved good results for Plaintiff (a 

stipulated remand for further proceedings), the representation of Plaintiff was professional, and 

there was no delay attributable to Plaintiff’s counsel. The fee award also will not result in a 

windfall to Plaintiff’s counsel. Plaintiff’s counsel worked 11.4 hours, and thus the effective 

hourly rate is approximately $951. The Court notes that effective hourly rates exceeding $1,000 

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); 
PAGE 4 – ORDER

Breedlove v. Comm’r, 2011 WL 2531174 (D. Or. June 24, 2011) (approving de facto hourly rate 

of $1,041.84). The Court finds that no downward adjustment is necessary in this case.

CONCLUSION

Plaintiff’s counsel’s motion for attorney fees pursuant to 42 U.S.C. § 406(b) (ECF 25) is 

GRANTED. Plaintiff’s counsel is entitled to attorney’s fees in the amount of $10,845.50. The 

Commissioner is directed to issue Plaintiff’s attorney a section 406(b) check in the amount of

$10,845.50, less any applicable administrative assessment as allowed by statute. Upon receipt of 

the 406(b) check, Plaintiff’s counsel shall refund to Plaintiff the $2,169.19 previously received 

by Plaintiff’s counsel under the EAJA.

IT IS SO ORDERED.

DATED this 17th day of July, 2018.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge