IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

KATIE GONZALES, 

Plaintiff, 

v. 

COMMISSIONER SOCIAL SECURITY 

ADMINISTRATION, 

Defendant. 

PAP AK, Magistrate Judge: 

3:16-CV-432-PK 

OPINION AND 

ORDER 

Plaintiff Katie Gonzales filed this action against defendant Commissioner of the Social 

Security Administration on March 9, 2016, seeking judicial review of the Commissioner's 

decision finding her not disabled for purposes of entitlement to disability insurance benefits 

Page 1 - OPINION AND ORDER 
("DIB") under Title II of the Social Security Act (the "Act") and to Supplemental Security 

Income ("SSI") under Title XVI of the Act. On June 5, 2017, I reversed the Commissioner's 

decision and remanded this matter for the calculation and payment of benefits. Gonzales moved 

unopposed for an award of attorney fees pursuant to the Equal Access to Justice Act (the 

"EAJA") on September 5, 2017, and I granted the motion the following day, September 6, 2017, 

authorizing award of fees to Gonzales' counsel pursuant to the EAJA in the amount of$8,671.63. 

Because Gonzales' petition for judicial review had previously been litigated partially successfully 

before Judge Brown, and because in connection with litigation before Judge Brown Gonzales' 

counsel had previously been awarded EAJA fees in the amount of $3, 116.16, the total amount of 

EAJA fees received to date by Gonzales' counsel in connection with litigating Gonzales' petition 

is $11,787.79. 

Now before the court is Gonzales' unopposed motion (#39), filed pursuant to 42 U.S.C. 

§ 406(b ), for approval of payment to her counsel out of her retroactive benefits award of 

$75,146.00 the amount of $18,786.50. 1 I have considered the motion and all of the evidence in 

the record. For the reasons set fmih below, the motion is granted as discussed below, and 

payment to Gonzales' counsel of attorney fees in the requested amount less a deduction for 

attorney-attributable delay and less the amount of the EAJA fees already paid to counsel, or 

$6,937 .56 (less any administrative deduction to be assessed by the Commissioner pursuant to 42 

U.S.C. § 406(d)) is approved. 

ANALYSIS 

Pursuant to 42 U.S.C. § 406(b ), Gonzales' counsel seeks the comi's approval of payment 

1 This amount represents precisely 25% of the retroactive benefits award. 

Page 2 - OPINION AND ORDER 
to him of attorney fees out of Gonzales' retroactive benefits award in the amount of $18, 786.50. 

This amount, as noted above, is precisely equal to the 25% contingency fee to which Gonzales' 

counsel is entitled pursuant to his fee agreement with Gonzales (which fee counsel has not yet 

received), but does not reflect any deduction from the contingency amount pursuant to 42 U.S.C. 

§ 406( d) or payment to counsel of EAJA fees. Gonzales' counsel asserts that upon receipt of any 

award of Rule 406(b) fees, he will refund to Gonzales the am?unt of the EAJA fees previously 

received by him in connection with litigating Gonzales' claim. 

Section 406(b) provides, in relevant part, as follows: 

Whenever a court renders a judgment favorable to a claimant under this 

subchapter who was represented before the court by an attorney, the court may 

detennine and allow as part of its 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). By contrast with fees awarded pursuant to the EAJA, a fee-shifting 

statute, Section 406(b) fees are paid out of the retroactive benefits awarded to the successful 

Social Security claimant. See id. Counsel representing Social Security claimants may not seek 

compensation from their clients for trial litigation other than through a Section 406(b) fee. See 

id. In the event that both an EAJA fee is awarded and a Section 406(b) fee payment is approved, 

the claimant's counsel must refund to the claimant the amount of the smaller of the two 

payments. See Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). Any Section 406(b) fee must 

be approved by the comi following analysis of its reasonableness before it may be paid. See 42 

U.S.C. § 406(b)(l)(A). 

In Gisbrecht, the Supreme Court established that the reasonableness of a Section 406(b) 

contingency fee is not to be detetmined primarily by reference to the lodestar method which 

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generally governs fee-shifting disputes. See Gisbrecht, 535 U.S. at 801-802. Instead, to the 

extent contingency fee agreements do not provide for fees exceeding 25% of claimants' 

retroactive benefits, their terms are fully enforceable subject only to the comi's review "to assure 

that they yield reasonable results in patiicular cases." Id. at 807. It is the claimant's counsel's 

burden to establish the reasonableness of the calculated fee. See id. 

In assessing the reasonableness of a Section 406(b) fee, comis look first to the 

contingency fee agreement itself, and then may reduce the resulting award "based on the 

character of the representation and the results the representative achieved." Id. at 808. The 

claimant's counsel bears the burden to establish the reasonableness of a Section 406(b) fee. See 

id. at 807. 

The Gisbrecht court provided, as examples of circumstances that could justify a 

downward reduction, situations in which the attorney was responsible for delay or in which "the 

benefits are large in comparison to the amount of time counsel spent on the case." Id. The court 

specified that "the comi may require the claimant's attorney to submit, not as a basis for satellite 

litigation, but as an aid to the court's assessment of the reasonableness of the fee yielded by the 

fee agreement, a record of the hours spent representing the claimant and a statement of the 

lawyer's normal hourly billing charge for noncontingent-fee cases." Id., citing Rodl'iquez v. 

Bowen, 865 F.2d 739, 741 (6th Cir. 1989) (en bane). 

The Ninth Circuit's en bane decision in Craiiford v. Astrue, 586 F.3d 1142 (9th Cir. 

2009), applied the Gisbrecht reasonableness analysis. The Crallford court affomed Gisbrecht's 

holding that it is en·or to dete1mine the reasonableness of a Section 406(b) fee by the metric of 

the lodestar method. See Crawford, 586 F.3d at 1150. 

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Here, Gonzales entered into a contingency fee agreement with her counsel providing for 

payment of 25% of her retroactive benefits to her attomey in the event of a favorable outcome 

following federal litigation. It therefore now falls to the court to assess whether $18,786.50 

constitutes reasonable compensation for Gonzales' counsel in light of the factors discussed in 

Gisbrecht and Crm1ford. 

A. Character of the Representation 

1. Quality of Attorney Performance 

As Gisbrecht and Crm1ford both make clear, substandard performance by a legal 

representative wanants a reduction in a Section 406(b) fee award. See Gisbrecht, 535 U.S. at 

808; Cra11ford, 586 F.3d at 1151. Here, there is no indication in the record that Gonzales' 

counsel's representation of his client was in any way substandard. No reduction in the Section 

406(b) fee is therefore warranted due to the character of counsel's legal representation. 

2. Dilatoriness 

A Section 406(b) award may properly be reduced if any delay in proceedings is properly 

attributable to the claimant's counsel. See Gisbrecht, 535 U.S. at 808; Crm1ford, 586 F.3d at 

1151. Here, Gonzales' counsel sought and received one 10-day extension of the deadline for 

filing the opening brief due to illness; the extension resulted in a nine-day extension of the underadvisement date of Gonzales' petition for judicial review. Although there was no impropriety 

whatsoever in seeking extension of court deadlines in order to accommodate challenges in 

counsel's workload management caused by illness, the extension did occasion delay in the final 

outcome of review proceedings for which Gonzales' attorney was responsible, wairnnting a 

commensurate reduction under Gisbrecht. Moreover, although there was nothing unreasonable 

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about Gonzales' request for extension, I find under the court's inherent authority and obligation to 

evaluate the reasonableness of fee awards, see Gisbrecht, 535 U.S. at 808, see also Craitford, 

586 F.3d at 1149, that it would nevertheless be unreasonable for Gonzales' attorney to benefit 

financially at Gonzales' expense from any delay, of no matter what duration, caused by matters 

personal to the attorney. 2 

But for the attorney-attributable delay, Gonzales would have had nine fewer days of 

past-due benefits, and thus would have received benefits for those nine days without a deduction 

for attorney fees. Those nine days of benefits would have been compensated at a monthly rate of 

$815.30, and thus would have been compensated in the total amount of$244.59, 25 percent of 

which is $61.15. The requested Section 406(b) fee is therefore reduced by $61.15 on the basis of 

attorney-attributable delay. 

B. Proportionality of Benefits Awarded to Attorney Time Spent 

The Gisbrecht and Craitford courts both held that a Section 406(b) award could be 

reduced if the benefits awarded to the Social Security claimant were out of propo1tion to the time 

spent by the claimant's attorney. See Gisbrecht, 535 U.S. at 808; Crcmford, 586 F.3d at 1151. 

Although neither court's opinion provides significant guidance as to how to measure such 

dispropmiionality, Gisbrecht established, see 535 U.S. at 808, and Crmiford affinned, see 586 

F.3d at 1151, that records of attorney time expended and a statement of the attorney's normal 

hourly fee in non-contingent matters could be considered in this connection, but only as an "aid" 

in assessing the reasonableness of the award provided in the contingency fee agreement. 

2 Where extension is sought due to the patticular complexity of a case or for the purpose 

of facilitating settlement negotiations, attorney-requested extensions of time do not wanant 

reduction under Gisbrecht. However, those factors are not at issue here. 

Page 6 - OPINION AND ORDER 
As noted above, the Gisbrecht and Crm1ford courts made clear that the lodestar method 

is an inappropriate metric for determining the propo1iionality of Section 406(b) compensation. 

See Gisbrecht, 535 U.S. at 801-802; Cra11ford, 586 F.3d at 1150. Indeed, considered in 

isolation, the product of the lodestar calculation can at best be of extremely limited utility in 

assessing the reasonableness of a contingency fee. The lodestar method of calculating fees is 

designed for use under circumstances in which it is intended that an attorney be compensated 

strictly for time expended rather than on the basis of results achieved, milestones reached, or any 

of the myriad other bases on which clients may pe1missibly compensate their legal 

representatives, and where the probability of nonpayment is both low and unrelated to the 

attorney's ultimate success or failure. By contrast, the method authorized under Section 406(b) is 

one designed to compensate attorneys commensurately with results achieved, and to take into 

account the risk of failure, in which case no compensation is available. It follows that the fact 

(standing alone) that a fee calculated according to the lodestar method may differ from a fee 

calculated according to a contingency fee agreement is uninformative as to whether the 

contingency fee might be dispropo1iionate. 

In light of the reasoning of Gisbrecht and of Crawford, it is clear that the 

disproportionality analysis shoi.1ld not directly address the absolute amount of the requested 

Section 406(b) fee, since that fee is always a maximum of25% of the retroactive benefits award, 

and must instead necessarily address primarily the effective requested hourly rate that may be 

back-derived by dividing the putative contingency award by the number of hours spent in 

pursuing it. Although that effective requested hourly rate cannot usefully be compared directly to 

a reasonable hourly fee to determine its prop01iionality, it is appropriate to posit that an effective 

Page 7 - OPINION AND ORDER 
requested hourly rate is not disproportionately high if it is less than or equal to the product of a 

reasonable hourly rate for non-contingent matters and the reciprocal of the pre-litigation 

probability that litigation would lead to a favorable result, based on the particular facts presented 

in a given case.3 That is, an effective requested hourly rate cannot be dispropmiionately high ifit 

does not overcompensate an attorney for the risk that the attorney assumed (at the time the 

representation was undertaken) that the attorney would ultimately receive no compensation for 

his or her services. An attorney is not overcompensated for such risk if the pre-litigation 

expected value of the representation -the probability of a favorable result times the 

compensation that would be received in the event of a favorable result - does not exceed the 

product of the appropriate hourly rate and the expected number of hours required. 

In addition to giving cognizable effect to the Gisbrecht couti's suggestion that an 

attorney's normal hourly rate could bear materially on the disproportionality analysis, see 

Gisbrecht, 535 U.S. at 808, and to the Crawford court's suggestion that case-specific risk could 

be a material factor in assessing the reasonableness of a Section 406(b) fee, see Crawford, 586 

F.3d at 1152-1153, measuring the relationship between a reasonable hourly fee for noncontingent matters and the effective requested hourly rate by reference to the case-specific risk of 

an unfavorable result has the benefit of providing a useful metric for assessing proportionality: a 

contingency fee award is dispropoliionately high where it disproportionately overcompensates 

for the pre-litigation risk of an unfavorable result. I therefore assess the proportionality of the fee 

3 Thus, if$100 were a reasonable hourly rate of compensation for non-contingent 

matters, an effective requested hourly rate would not be disproportionate in light of the risk a 

particular contingency matter presented if, e.g., the probability of a favorable outcome was 25% 

(or a one in four chance) and the effective requested hourly rate did not exceed $400 (or four 

times the reasonable hourly rate). 

Page 8 - OPINION AND ORDER 
requested in this action to the time expended in litigation by reference to this risk-assessment 

metric. 

Here, Gonzales' counsel offers evidence that Gonzales' attorneys expended a total of 61.4 

hours in litigating Gonzales' petition for judicial review; this total includes time spent litigating 

before Judge Brown in 2013 and 2014, litigating the merits of Gonzales' petition before this court 

in 2016 and 2017, and preparing the motion for EAJA fees, but does not include time spent 

preparing the motion for Section 406(b) fees now before the court. Compensation for 61.4 hours 

of work in the amount of $18,725.35 (the total amount of compensation Gonzales' counsel seeks 

under both the EAJA and Section 406(b ), as adjusted for attorney-attributable delay) in a noncontingency context would reflect an hourly rate of $304.97. Gonzales' counsel of record offers 

no evidence of his normal hourly rate, and in any event the record before the co mi does not 

establish that it was plaintiffs counsel of record, as opposed to another attorney or other attorneys 

employed by counsel's firm, that performed the legal services at issue. Although counsel's failure 

to provide the court with information regarding the experience and skill of the attorney or 

attorneys who performed work on behalf of Gonzales in litigating her petition for judicial review 

makes the court's reasonableness dete1mination more challenging and less certain, on any 

reasonable assessment of the pre-litigation risk of an unfavorable outcome for Gonzales, I 

neve1iheless find that the constructive hourly rate at which Gonzales' counsel seeks 

compensation establishes that counsel does not seek compensation in an amount dispropo1iionate 

to the time spent in litigation, no matter what the experience and skill levels of Gonzales' 

attorneys. See Crm1ford, 586 F.3d at 1145-1153 (approving Rule 406(b) fees in an amount 

equivalent to a constructive hourly rate in excess of$1,000). For example, assuming that there 

Page 9 - OPINION AND ORDER 
was at least a 50% chance of an unfavorable outcome on Gonzales' fee petition - and it is likely 

that a reasonable pre-litigation assessment of the risk of an unfavorable outcome would have 

exceeded 50% - the compensation requested here could not be disproportionate unless 

compensation in a non-contingency matter for Gonzales' attorneys would be unreasonable at an 

hourly rate of $152.49, and such constructive rate is sufficiently low to be manifestly reasonable 

for Portland-area practitioners. See, e.g., Oregon State Bar 2017 Economic Survey, 

https://www.osbar.org/ _ docs/resources/Econsurveys/17EconomicSurvey.pdf; Oregon State Bar 

2012 Economic Survey, https://www.osbar.org/ _ docs/resources/Econsurveys/ 

12EconomicSurvey.pdf. I therefore conclude that reduction is not warranted in connection with 

the proportionality factor, taking into account case-specific risks and any reasonable assumption 

as to the appropriate n01mal hourly rate for non-contingent matters. 

C. Appropriate Fee 

For the foregoing reasons, I find that the contingency fee agreement in place between 

Gonzales and her counsel is within the statutory limits provided in 29 U.S.C. § 406(b), and that 

the fee provided therein (less the reduction discussed above for attorney-attributable delay) is 

reasonable. The motion for approval of Section 406(b) fees is therefore granted, and payment to 

Gonzales' counsel of $6,93 7 .56 (less any administrative deduction to be assessed by the 

Commissioner pursuant to 42 U.S.C. § 406(d)) from Gonzales' retroactive fee award is approved. 

CONCLUSION 

For the reasons set forth above, the motion (#39) for approval of Section 406(b) attorney 

fees is granted, and payment to Gonzales' counsel of $6,937 .56 (less any administrative 

II I 

Page 10 - OPINION AND ORDER 
deduction to be assessed by the Commissioner pursuant to 42 U.S.C. § 406(d)) from Gonzales' 

retroactive benefits award is approved. 4 

-f 1...... 

Dated thislJ th day of July, 2018. 

Honorable Paul Papak 

United States Magistrate Judge 

4 Because the approved fee award includes a deduction for the EAJ A fees already 

received by Gonzales' counsel, no refund to Gonzales of any amount of the Rule 406(b) fee 

award herein to reflect counsel's receipt ofEAJA fees is required. 

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