1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

LOUIS SHADEROCK, Plaintiff, v. Civil Action No. 12-1912 (JEB) CAROLYN W. COLVIN, Commissioner of S ocial Security Administration, Defendant.

MEMORANDUM OPINION Plaintiff Louis Shaderock obtaine d a fully favorable decision for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) benefits. He now seeks attorney fees totaling $25,009.62 pursuant to Sec tion 406(b) of the Social Se curity Act. This amount, which represents 25% of his past-due be nefits and is the maximum perc entage allowable under the statute, is not opposed by the G overnment. Concluding that Pla intiff’s contingent-fee agreement with his attorney is reasonable , the Court will grant his Motio n and award Shaderock $21,016.59, which equals the full sum requested minus a prior Equal Access to Justice Act (EAJA) award.
I. Background In April 2004, Plaintiff filed f or DIB and SSI benefits, but hi s initial application and reconsideration were both denie d. See ECF No. 23-2 (Motion) at 1. An Administrative Law Judge denied his claim on app eal in 2009, and the Appeals Counc il affirmed that decision in 2011. Id. Shaderock then filed thi s action in 2012 and retain ed counsel in 2013 under a contingency-fee agreement th at entitled counsel to 25% of any r ecovered benefits. See Mot. at 1; ECF Nos. 1 (Complaint), 23-7 (Fee Agreement). After a revie w on the merits, this Court2 remanded the matter for further administrative proceedings, see ECF No. 17, and subsequently awarded Plaintiff $5,721.03 in att orney fees under EAJA, 28 U.S .C. § 2412. See ECF No. 19 (Order). Counsel, however, onl y received $3,993.03 of this amo unt due to a deduction taken from that award for a debt ow ed by Plaintiff. See ECF No. 23-5 (Offset Notice). On January 7, 2016, Shaderock received a Fully F avorable Decision for his pas t-due and continued benefits. See ECF No. 23-3 (Fully Favorable Decision). The Government is sued a Notice of Award for his DIB claim on February 16, 2016, and for his SSI claim on Ma y 2, 2016. See ECF Nos. 23-4 (DIB Notice of Award), 23-6 (SSI N otice of Award). Plaintiff n ow files a Motion for Attorney Fees under 42 U.S.C. § 406(b) to request $25,009.62 – 25% of hi s past-due benefits. Plaintiff’s counsel expende d 35.9 hours on this suit in federal court. See ECF No. 23-1 (Declaration of Kenneth R. Hiller), ¶ 19. Counsel has been an attorney for 32 years, and his normal billing rate is $295 per hour. Id., ¶¶ 3, 23. He has w orked on Social Security cases since 1988, handling hundreds of cases at th e district-court level an d thousands of cases at the administrative level. Id., ¶¶ 5, 7. Defendant does not take a position on whether the request is reasonable, but points out that it amounts to an hourly rate of $696.65. See ECF No. 26 (Response) at 4, 5. Defendant notes , furthermore, that the EAJ A award is included in the 25% cap of attorney fees pursuant t o § 406(b) and should be refunde d to the extent necessary. Id. at 4.
II. Legal Standard Under § 406(b) of the Social Securi ty Act, the Court may award an attorney who successfully represents a claimant in court “a reasonable fee f or such representation, not in excess of 25 percent of . . . past- due benefits.” 42 U.S.C. § 406(b)(1)(A). S ection 406(b) is designed to “control, not to displace, fee agreements between S ocial Security benefits claimants and their counsel.” Gisbr echt v. Barnhart, 535 U.S. 789, 793 ( 2002). Specifically, § 406(b)3 requires a court to review “suc h arrangements as an independent check, to assure that they yield reasonable results in particular cases.” Id. at 807 (emphasis added). Where the contingent-fee arrangement falls within the sta tutory maximum, the court deter mines its reasonableness based on the particulars of the cas e. Buljina v. Astrue, 828 F. Supp . 2d 109, 114 (D.D.C. 2011). The court may reduce the award if the arrangement is not reasonable – e.g. , if the representation is substandard, the attorney delays t he case for the benefits to a ccrue, or the compensation is too large relative to the time sp ent on the case. Gisbrecht, 535 U .S. at 808 (citations omitted). Courts will also consider the a ttorney’s risk of loss, her expe rtise in Social Security cases, and the difficulty of the case. Jeter v. Astrue, 622 F.3d 371, 376 (5th Cir. 2010); Greenberg v. Colvin, No. 13-1837, 2015 WL 4078042, a t *7 (D.D.C. July 1, 201 5); Buljina, 828 F. Supp. 2d
at 113-14.
III. Analysis Plaintiff’s contingent-fee arr angement of 25% is the same as th e statutory limit prescribed by § 406(b). As the Court must ne xt look to the reasonableness of the arrangement, it considers the following factors in turn: ( 1) quality of representation; ( 2) whether the attorney delayed the case to allow the benefits to accr ue over a longer period; (3) whether there was a risk of loss; (4) the difficulty of the case; and (5) the size of the compensatio n relative to the time spent on the

case. A. Quality of Representation The quality of the representati on in this case was at least ade quate. Prior to retaining an attorney, Plaintiff had been uns uccessful in his attempts to ob tain DIB or SSI benefits. See Mot. at 1. Once counsel became involve d, he was able to secure a substantial awar d. See Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (describing counsel ’s performance as “excellent”4 for securing favorable result). T he value of Plaintiff’s award secured by counsel, moreover, is larger than the past-due benefits calculation of $100,038.50 un der § 406(b) because Plaintiff will continue to receive benefits for his DIB claim until he dies, r eaches retirement age, or is no longer disabled. See Mot. at 8; Resp. at 4. Representation th at yields a favorable decision is precisely the type of result plai ntiffs seek and that a conting ent-fee arrangement makes available to previously unsuccessful plain tiffs. The Court thus finds tha t the quality of representation was solid.
B. Undue Delay Plaintiff’s counsel, moreover, w as not responsible for delaying the case. See Lasley v. Comm’r of Social Secur ity, 771 F.3d 308, 310 (6th Cir. 2014) (h olding contingent-fee arrangement unreasonable where attorney delayed filing § 406(b) motion). Attorneys should not delay proceedings so that benef its accrue over an extended peri od of time. Gisbrecht, 535 U.S. at 808. Counsel here did not delay in filing § 406(b) motion. He first filed the motion on June 30, 2016, see ECF No. 20, just two m onths after receiving the N otice of Award, and then refiled on September 2, 2016, to comply with the Local Rules. See Mot. at 1; Minute Order of July 1, 2016. Although there was some dela y to allow for a proper fili ng, the benefits did not accrue as a result because they were calculated only through May 2016. S ee Mot. at 2. Therefore, the Court finds no evidence of undue delay.
C. Risk of Loss The Court next considers th e amount of risk faced by Plaintiff’ s counsel. Buljina, 828 F. Supp. 2d at 113-14. If “the risk of lo ss was so low that the c laimant’s success was not particular to the attorney’s efforts,” the n the contingent-fee agreement m ay not be reasonable. Jeter, 622 F.3d at 382 n.13. The “greater the r isk that the claimant woul d not prevail,” the more likely a5 contingent-fee agreement is r easonable. Coppett v. Barnhart, 2 42 F. Supp. 2d 1380, 1383 (S.D. Ga. 2002). Claimants in Plaintiff’s position statistically do not have a great chance of success on this type of suit. See Mot. a t 6 (citing 2007 GAO Report). Sh aderock, moreover, was unsuccessful without counsel: his claim was denied at initial a pplication, reconsideration, before the ALJ, and by the Appeals C ouncil. See Mot. at 1. Counsel p rovided his services despite these denials and, by using a continge nt-fee agreement, he took “upon [himself] the risk that [he] will receive no payment at all” in re presenting Plaintiff. Hensley v. Eckerhart, 461 U.S. 424, 448 (1983) (Brennan, J., concurring) . The Court, consequently, fin ds that counsel faced a substantial risk of loss.
D. Difficulty of Case A contingent-fee agreement may be reasonable if the case is dif ficult. See Coppett, 242 F. Supp. 2d at 1384. In Buljina, the court upheld the agreemen t because the plaintiff had “suffered several legal setback s in pursuit of his claim” and w as only successful after retaining an attorney. See 828 F. Supp. 2d a t 114. As just discussed, t he same was true here. This factor thus weighs in Counsel’s favor.
E. Compensation Relative to Time Expended Counsel may not receive an “unjusti fied windfall” from a contin gent-fee agreement; in other words, the compensation may not dwarf the time spent on t he case. Buljina, 828 F. Supp. 2d. at 115; see Gisbrecht, 535 U.S . at 808. A court may review a record of hours spent on the case and the attorney’s norma l hourly billing fee to see if the request is out of line. Gisbrecht, 535 U.S. at 808; Outlaw v. Chater, 921 F. Supp. 13, 18 (D.D.C. 1996). Counsel spent 35.9 hours on the judicial-review portion of the case and requests $25,009 .62, which amounts to $696.65 per hour. See Mot. at 7; Hiller Decl., ¶ 19. Counsel’s normal , non-contingent rate is $295 per6 hour. See Hiller Decl., ¶ 23. Alt hough the requested rate is 2.36 times counsel’s normal hourly rate, this rate is not out of line given the above factors. Se e Gisbrecht, 535 U.S. at 798-99 (holding attorney-fee decision s hould not rest on lodestar calc ulation alone); Jeter, 622 F.3d at 377 (same). Courts, moreover, have approved larger multipliers . See Ellick v. Barnhart, 445 F. Supp. 2d 1166, 1173 (C.D. Cal. 2006) (findi ng requested rate 2. 5 times normal hourly rate for § 406(b) claim reasonable); Cl aypool v. Barnhart, 294 F. Supp. 2d 829, 833-34 (S.D. W. Va. 2003) (finding requested rate 5.73 times normal hourly rate for § 406(b) claim reasonable). The hourly rate is reasonable, furthermore, because Counsel has bee n an attorney for 32 years, worked on Social Security cases since 1988, and handled thousan ds of Social Secu rity cases at all levels. See Hiller Decl ., ¶¶ 3, 4, 7. The Commissioner’s position on reasonableness is also highly relevant. See Buljin a, 828 F. Supp. 2d. at 114 (conside ring Commissioner’s lack of position in affirming attorne y fee); Lasley, 771 F.3d at 310 (c onsidering Commissioner’s opposition in reducing attorney f ee). The Commissioner here do es not take a position as to the Agreement’s reasonableness. See Resp. at 5. The Court thus fi nds that the compensation was commensurate with the time spent on the case.7 IV. Conclusion For the foregoing reasons, the C ourt finds that Plaintiff is e ntitled to $25,009.62 in attorney fees. As counsel has already obtained an EAJA award f or $3,993.03 and cannot receive an aggregate sum of more than 25% of past-due benefits pursuant to § 406(b), the Court will award him the difference, w hich equals $21,016.59. A contempor aneous Order so stating will issue this day.
/s/ James E. Boasberg JAMES E. BOASBERG United States District Judge Date: October 20, 2016