IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

PORTLAND DIVISION 

GINA D.,1 

Plaintiff, 

vs. 

ANDREW SAUL, 

Commissioner of Social Security, 

Defendant. 

AIKEN, District Judge: 

Case No. 3:16-cv-00433-AA 

OPINION AND ORDER 

Plaintiff Gina D. brought this action seeking review of the Commissioner's 

final decision to deny Disability Insurance Benefits and Dependent Child Social 

Security Disability Benefits. On May 2, 2017, the Court ordered that the case be 

reversed and remanded for further proceedings. Doc. 19. Judgment was entered 

May 5, 2017. Doc. 22. On April 15, 2019, plaintiffs counsel received notice of 

plaintiffs award of benefits. Pl. Mot. Att. (doc. 29) Ex. 3. 

1 In the interest of privacy, this opinion uses only the first name and the initial of the last 

name of the non-governmental party or parties in this case. Where applicable, this opinion uses the 

same designation for a non-governmental party's immediate family member. 

Page 1- OPINION AND ORDER 
Plaintiff now seeks an award of fees pursuant to 42 U.S.C. § 406(b). 

Defendant objects to the amount requested, arguing that it would constitute an 

impermissible windfall to plaintiff's counsel. The Court has reviewed the record in 

this case, the motion, and the supporting materials including the award of benefits, 

the fee agreement with counsel, and the recitation of counsel's hours and services. 

Under 42 U.S.C. § 406(b), a court entering judgment in favor of a social 

security disability insurance ("SSDI") claimant who was represented by an attorney 

may "determine and allow as part of its judgment a reasonable fee ... not in excess 

of 25 percent of the total past-due benefits to which the claimant is entitled .... " 

Crawford v. Astrue, 586 F.3d 1142, 1147 (9th Cir. 2006). The attorney fee award in 

a social security case is paid by the claimant out of the past-due benefits award, not 

by the losing party, and the claimant's attorney bears the burden of demonstrating 

the requested fee is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 802, 807 

(2002). 

Contingent-fee agreements providing for fees of 25 percent of the past-due 

benefits awarded are the most prevalent fee arrangements between Social Security 

claimants and attorneys. Crawford, 586 F.3d at 1147 (quoting Gisbrecht, 535 U.S. 

at 800). The statute does not specify how to determine whether a requested fee is 

reasonable, but the Supreme Court has instructed that courts "must respect 'the 

primacy of lawful attorney-client fee agreements ... looking first to the contingentfee agreement, then testing it for reasonableness.'" Id. (quoting Gisbrecht, 535 U.S. 

at 793, 808). The Crawford court set out factors, based on its analysis of Gisbrecht, 

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for analyzing the reasonableness of a requested fee in a particular case: (1) the 

character of the representation (specifically, if the representation was substandard); 

(2) the results achieved; (3) any delay attributable to the attorney seeking the fee;

and (4) whether the requested fee is not in proportion to the time spent on the case 

(i.e. whether the award would be a windfall). Crawford, 586 F.3d at 1151-53 

(citations omitted). The Crawford panel also recognized the risk inherent in 

contingency-fee representation is an appropriate factor to consider in assessing a 

fee's reasonableness, but instructed courts to focus on the "complexity and risk 

involved in the specific case at issue to determine how much risk the firm assumed 

in taking the case." Id. at 1153. 

Applying the standards set by Gisbrecht, the Court determines that a 

downward adjustment in the requested fee is warranted in this case. The Court 

first turns to the contingent-fee agreement. Its terms are within the statutory 

limits of 42 U.S.C. § 406. Pl. Mot. Att. Ex 1 at 1. Combined with the agency fee 

already received, the requested fee of $29,200 is 22.65% of the benefits owed to 

plaintiff, which is within the statutory maximum.2 Both the character of the 

representation and the results obtained were good as plaintiffs counsel obtained a 

remand from this Court and a finding of disability on remand, leading to the reward 

of seven years' worth of benefits owed to plaintiff and her child. Opinion and Order 

(doc. 19), Pl. Mot. Att. Ex 2 at 3. There was no significant delay attributable to 

plaintiffs counsel. 

2 On its own, plaintiffs requested fee is roughly 18.8% of plaintiff's back benefits. 

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The requested fee, however, is not proportional to the time spent on the case. 

See Gisbrecht, 535 U.S. at 808 ("If the benefits are large in comparison to the 

amount of time counsel spent on the case, a downward adjustment is ... in order."). 

Counsel requests $29,200 for 1 4.6 hours of work. Although the amount of time 

spent on this case was reasonable, the $155,405 back benefit award is large in 

companson. 

Counsel asserts that the amount requested is reasonable because plaintiffs 

attorneys are experience and specialize in Social Security cases, so they are "able to 

efficiently and quickly complete briefing in a few hours," and the hours billed reflect 

an "efficient billing practice that focuses on substantive work." PL Mot. Att. at 5-6. 

Counsel also urges the Court to consider that " Social Security attorneys face 

a substantial risk of non-payment for their work." Id. at 6. Although the Court 

may consider the risk inherent in contingency representation, counsel has failed to 

carry their burden of demonstrating any risk particular to this case. Crawford, 586 

F.3d at 1153. Instead, counsel focused on the general risks of nonpayment that 

attorneys face when they accept a Social Security case. PL Mot. Att. at 6; PL Reply 

(doc. 31) at 2. Additionally, about a third of the total benefit award ($51,781) were 

child benefits, which did not require additional arguments from counsel. 

Accordingly, the Court reduces plaintiff's fee to $26,000. This amount equals 

roughly 16.7% of the benefits awarded, or 20.6% when combined with the agency 

fee. This fee takes into account the risk involved and the complexity of this case 

and acknowledges the efficient and expedient resolution of this case. 

Page 4-OPINION AND ORDER 
CONCLUSION 

The Court GRANTS in part plaintiff's Motion (doc. 29) and awards plaintiff's 

counsel $26,000 in attorney's fees under 42 U.S.C. § 406(b). Plaintiff's counsel shall 

refund to plaintiff the $2,826.86 EAJA fees previously awarded upon receipt of the 

allowed§ 406(b) fee award. 

IT rs so ORDERED. 

Dated this\ \iMlday of March 2020. 

Ann Aiken 

United States District Judge 

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