Abed v. Commissioner Social Security Administration

Filing 40

ORDER: Granting Application for Fees Pursuant to EAJA 33 ; Granting Motion for Attorney Fees 35 . See attached 17 page order; Counsel is awarded $9,389.00 in § 406(b) fees less the $7,499.99 awarded in EAJA fees. By Magistrate Judge Dennis J. Hubel, on 10/21/2011. (tll)

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UNITED STATES DISTRICT COURT
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DISTRICT OF OREGON
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PORTLAND DIVISION
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ZAINAB HUSSEIN ABED,

)
)
Plaintiff,
)
03:09-cv-00160-HU
)
vs.
)
OPINION AND
)
ORDER
MICHAEL J. ASTRUE,
)
Commissioner of Social Security,
)
)
Defendant.
)
________________________________
Richard A. Sly
1001 SW 5th Avenue, Suite 310
Portland, OR 97204
Linda S. Ziskin
P.O. Box 2237
Lake Oswego, OR 97035

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Attorneys for Plaintiff

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Dwight C. Holton
United States Attorney
Adrian L. Brown
Assistant United States Attorney
1000 SW Third Avenue, Suite 600
Portland, OR 97204-2902

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Brett E. Eckelberg
Special Assistant United States Attorney
Office of the General Counsel
Social Security Administration
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104-7075
Attorneys for Defendant
OPINION AND ORDER

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1

HUBEL, Magistrate Judge:

2

Opinion and Order

3

Currently before the court is plaintiff Zainab Hussein Abed’s

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(“Abed”) motion (doc. #33) for fees pursuant to the Equal Access to

5

Justice Act (“EAJA”), 28 U.S.C. § 2412, and Abed’s motion (doc.

6

#35) for approval of attorneys fees pursuant to 42 U.S.C. § 406(b)

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(“§ 406(b)”).

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(hereinafter “Counsel”) should be awarded $7,499.99 in EAJA fees.

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As to § 406(b), Counsel moves the court for approval of fees in the

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amount of $10,131.50,1 or twenty-five percent of Abed’s past-due

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benefits.2

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Barnhart, 535 U.S. 789, 122 S.Ct. 1817 (2002), and explained in

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Crawford v. Astrue, 586 F.3d 1142 (9th Cir. 2009) (en banc), Abed’s

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motions are GRANTED. Counsel is awarded $9,389.00 in § 406(b) fees

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from which $7,499.99 in EAJA fees must be refunded to Abed.

The parties stipulate and agree that Abed’s counsel

Based on the factors established in Gisbrecht v.

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Procedural Background

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Abed

protectively

filed

applications

for

Supplementary

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Security Income (“SSI”) benefits under Title XVI of the Social

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Security Act on July 29, 2004.

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SSI

benefits

were

denied

(Compl. ¶ 4.)

initially

and

upon

Abed’s claims for
reconsideration.

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As the Commissioner correctly noted, Counsel inadvertently
specified the amount of § 406(b) fees being sought as both
$10,131.50 and $10,837. (Def.’s Resp. (doc. #39) at 2 n.1; Doc.
#35.) However, Counsel’s briefing makes clear that the figure she
is seeking is $10,131.50. (See Mem. Supp. Pl.’s Mot. (doc. #36) at
1, 2.) The mistake was in the total, of back benefits and was high
by $2,970 ($40,526-37,556). One fourth of the back benefit error is
$742.50 in fees which is the amount sought that is not awarded.
2

Under 42 U.S.C. § 406(b), the court may award a reasonable
fee no more than twenty-five percent of the claimant’s retroactive
award.
OPINION AND ORDER

2

1

(Compl. ¶ 5.)

2

Law Judge (“ALJ”), who denied Abed’s claims on December 28, 2007.

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(Compl. ¶ 5.)

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on January 16, 2009, the Appeals Council denied review.

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result, the ALJ’s decision became the final decision of the

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Commissioner

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exhausted.

Abed was granted a hearing before an Administrative

Abed requested a review of the ALJ’s decision and,

and

Abed’s

administrative

remedies

were

As a

fully

(Compl. ¶ 5.)

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On February 9, 2009, Abed sought review in this court,

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claiming that the Commissioner’s decision was not supported by

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substantial evidence and was based upon errors of law.

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6.)

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she claimed that the ALJ improperly rejected opinions of treating

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doctors; the ALJ made legally inadequate severity findings; the ALJ

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erred at step 3 in the 5-step sequential analysis; and the ALJ’s

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residual functional capacity(“RFC”) was incomplete. (Pl.’s Opening

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Br. (doc. #22) at 12-17.)

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filed

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aforementioned alleged errors by the ALJ.

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at 4-20.)

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February 24, 2010.

(Compl. ¶

On December 2, 2009, Counsel filed her opening brief wherein

a

brief

opposing

On February 3, 2010, the Commissioner
Counsel’s

position

regarding

the

(Def.’s Br. (doc. #26)

In response, Counsel filed a five page reply brief on
(Pl.’s Reply (doc. #30) at 1-5.)

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This court filed an Opinion and Order, which reversed the

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Commissioner’s decision and remanded the case for an award of

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benefits. (Doc. #31.)

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2010.

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court, for EAJA and § 406(b) fees were filed on November 9, 2010,

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and February 28, 2011, respectively.

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///

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///

(Doc. #32.)

OPINION AND ORDER

Judgment for Abed was entered on August 26,

Abed’s motions, which are currently before the

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(Doc. #33; Doc. #35.)

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2

Legal Standard
I.

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EAJA Fees
The

EAJA

effectively

increases

the

portion

of

past-due

4

benefits to a successful Social Security claimant.

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U.S. at 796.

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attorney’s hourly rate, capped in most cases at $125 per hour.

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EAJA fees are awarded against and paid by the government if Social

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Security claimants prevail against the United States in court and

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the government’s position in the litigation was not substantially

Gisbrecht, 535

EAJA fees are determined by the time expended and the
Id.

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justified.

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406(b), “but the claimant’s attorney must refund to the claimant

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the amount of the smaller fee.”

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quotation marks omitted).

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II.

Id.

Fee awards may be made under both EAJA and §

Id. (internal citation and

Section 406(b) Fees

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A.

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In Social Security cases, attorney fee awards are governed by

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The Statute

§ 406(b), which provides in pertinent part:
(1)(A) 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 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[.]
42 U.S.C. § 406(b)(1)(A).

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B.

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Gisbrecht v. Barnhart, 535 U.S. 789, 792, 122 S.Ct. 1817

Controlling Precedent

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(2002)

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Supreme Court addressed the question, which sharply divided the

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Federal Courts of Appeals: “What is the appropriate starting point

concerned fees awarded under § 406(b).

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OPINION AND ORDER

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Specifically, the

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for judicial determinations of a reasonable fee [under § 406(b),]

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for representation before the court?”

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For

the

purposes

of

the

Id.

opinion,

the

Supreme

Court

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consolidated three separate actions where the District Court, based

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on Circuit precedent, declined to give effect to the attorney-

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client fee arrangement.

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employed a lodestar method whereby the number of hours reasonably

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devoted to each case was multiplied by a reasonable hourly fee.

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Id. at 797-98.

Id. at 797.

Instead, the District Court

The Court concluded that § 406(b) requires a court

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to review the contingent-fee arrangement, to assure it yields

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reasonable results.

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line, e.g., contingent-fee agreements are unenforceable if they

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exceed 25 percent of past-due benefits.

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percent boundary, “the attorney for the successful claimant must

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show that the fee sought is reasonable for the services rendered.”

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Id. (emphasis added).

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Courts

are

Id. at 807.

instructed

to

Congress provided one boundary

first

Id.

test

But, within that 25

the

contingent-fee

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agreement for reasonableness.

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fees can be appropriately reduced based on (1) the character of the

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representation; (2) the results achieved; (3) when representation

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is substandard; (4) if the attorney is responsible for delay; and

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(5) if the benefits are large in comparison to the amount of time

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counsel spent on the case.

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required to submit a record of hours spent representing the

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claimant and a statement of the lawyer’s normal hourly billing

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charge for noncontingent-fee cases in order to aid the court’s

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assessment of reasonableness.

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stated that, “[j]udges of our district courts are accustomed to
OPINION AND ORDER

Id. at 808.

Id.

The claimant’s attorney may be

Id.

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An award of § 406(b)

Finally, the Gisbrecht court

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making reasonableness determinations in a wide variety of contexts,

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and their assessments in such matters, in the event of an appeal,

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ordinarily qualify for highly respectful review.”

Id.

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In Crawford v. Astrue, 586 F.3d 1142 (9th Cir. 2009) (en

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banc), the Ninth Circuit reviewed three consolidated appeals and

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determined that, in each case, the district court failed to comply

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with Gisbrecht’s mandate.

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the three cases, the claimant signed a written contingent fee

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agreement whereby the attorney would be paid 25 percent of any

Crawford, 586 F.3d at 1144.

In each of

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past-due

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contingency-fee agreements, which provide for fees of 25 percent of

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past-due benefits, are the norm for Social Security practitioners.

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Id. at 1147.

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(“SSA”) “has no direct interest in how much of the award goes to

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counsel and how much to the disabled person, the district court has

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an affirmative duty to assure the reasonableness of the fee is

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established.” Id. at 1149.

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asking whether the amount of the fee agreement need be reduced.

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Id.

benefits

awarded.

The

Crawford

court

noted

that

However, since the Social Security Administration

Performance of that duty begins by

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The district courts’ decisions, in each of the consolidated

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cases, were overruled by the Ninth Circuit because they relied “on

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lodestar

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attorney-client fee agreements.”

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535 U.S. at 793, 122 S.Ct. 1817).

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courts erroneously began with a lodestar calculation by comparing

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the lodestar fee to the requested fee award.

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requested fees representing 13.94%, 15.12%, and 16.95% of past-due

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benefits.

calculations

and

Id. at 1145-47.

OPINION AND ORDER

reject[ed]

the

primacy

of

lawful

Id. at 1150 (citing Gisbrecht,
Specifically, the district

Id.

The attorneys

The Crawford opinion noted that in
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these

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voluntarily reduced their fee request from the contingency fee

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agreement’s 25%.

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themselves suggested that the full 25% fee provided for by their

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fee agreements would be unreasonable.”)

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received the 25 percent fee provided for by their agreements, they

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would have been awarded fees ranging from $19,010.25 to $43,055.75.

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Id. at 1150.

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fees by between 53.7% and 73.30% and ultimately awarded fees that

stipulated

remand

cases,

the

plaintiff’s

attorney’s

See id. at 1150 n.8 (“The attorneys . . .

If the attorneys had

The district courts, however, reduced the contracted

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represented 6.68% to 11.61% of the past-due benefits.

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Ninth Circuit went on to state that:

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Id.

The

In Crawford, for example, the district court awarded
6.68% of the past-due benefits. From the lodestar point
of view, this was a premium of 40% over the lodestar. .
. . But from the contingent-fee point of view, 6.68% of
past-due benefits was over 73% less than the contracted
fee and over 60% less than the discounted fee the
attorney requested. Had the district court started with
the contingent-fee agreement, ending with a 6.68% fee
would be a striking reduction from the parties’ fee
agreement.
This difference underscores the practical
importance of starting with the contingent-fee agreement
and not just viewing it as an enhancement.

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Id. at 1150-51.

In Washington and Trejo, the district court

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reduced the already discounted fees claimed by the attorneys by 23%
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and 47%, respectively.

Id. at 1151 n.9.

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Importantly, the Ninth Circuit also noted that Gisbrecht “did
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not provide a definitive list of factors that should be considered
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in determining whether a fee is reasonable or how those factors
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should be weighed[.]” Id. at 1151.

They went on to cite Mudd v.

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Barnhart, 418 F.3d 424(4th Cir. 2005), for the proposition that:
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“The [Supreme] Court did not provide a definite list of factors to
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be considered because it recognized that the judges of our district
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OPINION AND ORDER

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are accustomed to making reasonableness determinations in a wide

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variety of contexts.”

Id. (citing Mudd, 418 F.3d at 428).

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4

Discussion
I.

EAJA Fees

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The parties, though their respective counsel, stipulate and

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agree that EAJA fees in the amount of $7,499.99 should be awarded

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to Counsel under 28 U.S.C. § 2412.

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court that 46.1 hours have been spent on Abed’s representation

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before the district court. (Mem. Supp. Pl.’s Mot. (doc. #36) at 7;

Counsel has represented to the

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Mem. Supp. Mot. EAJA Fees (doc. #34) at 2-3.)

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prevailed against the United States in court and the Government’s

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position

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Accordingly, Counsel should be awarded $7,499.99 in EAJA fees to be

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paid by the government in addition to back benefits.

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Astrue v. Ratliff, 130 S.Ct. 2521 (2010), the award should be made

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payable to Counsel if the Commissioner confirms that Abed owes no

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debt to the government through the federal treasury offset program.

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II.

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in

the

litigation

was

not

substantially

Counsel has

justified.

Pursuant to

The Fee Arrangement
Abed and Counsel entered into a contingency-fee agreement

which reads:
I and my attorneys agree that if it is necessary to
appeal this case to federal court and if such action is
taken, the attorneys’ fee for representation before the
court shall be the greater of the following:

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1.

25% (twenty-five percent) of the past-due
benefits resulting from my claim or
claims (which I understand may exceed
$400.00 per hour of attorney work), or

2.

Such amount as my attorneys are able to
obtain pursuant to the Equal Access to
Justice Act (EAJA). Fees paid pursuant
to the EAJA are paid by the U.S.

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OPINION AND ORDER

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1

government or agency thereof - not out of
the claimant’s past-due benefits.

2
(Mem. Supp. Mot. EAJA Fees (doc. #34) at 9-10.)
3
By its terms, the contingency fee agreement is within the
4
statutory limits.

The court will examine whether the fee sought

5
exceeds § 406(b)’s 25 percent ceiling, which requires evidence of
6
total past-due benefits.

Dunnigan v. Astrue, No CV 07-1645-AC,

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2009 WL 6067058, at *9 (D. Or. Dec. 23, 2009). Here, Counsel has
8
stated that Abed will receive approximately $40,526 in retroactive
9
benefits.

(Mem. Supp. Pl.’s Mot. (doc. #36) at 2.)

As the

10
Commissioner points out, however, Counsel has miscalculated the
11
amount she is due under § 406(b).

(Def.’s Resp. (doc. #39) at 2.)

12
The regulations define “past-due benefits” under the SSI program
13
as:
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the total amount of payments under title XVI of the Act,
the [SSI] program, including any Federally administered
State payments, that has accumulated to you and your
spouse because of a favorable administrative or judicial
determination or decision, up to but not including the
month the determination or decision is made.
20 C.F.R. § 416.1503 (2010) (emphasis added).

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Here, the court issued its Opinion and Order in August 2010.

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Thus, for the purposes of § 406(b) fees, past-due benefits must be

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calculated only through July 2010, which was the month prior to

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this court’s decision.

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Ex. 2), Abed accumulated back payments totaling $28,052.00 from

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August 2004 through March 2009.

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from April 2009, through July 2010, Abed accumulated an additional

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$9,504.00 in back payments, based on a monthly payment of $594.00.

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Thus, for the purposes of determining § 406(b) fees, the amount of

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past-due benefits totals $37,556.00 ($28,052.00+$9,504.00). TwentyOPINION AND ORDER

Based on Abed’s Notice of Award (doc. #36

Over the ensuing 16-month period,

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five percent of that amount is $9,389.00.

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request must therefore be reduced by $742.50 to avoid exceeding 25%

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of past due benefits.

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III. The Reasonableness of the § 406(b) Fee

Counsel’s § 406(b)

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I turn now to my primary inquiry, the reasonableness of the

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fee sought, e.g., $9,389.00 in § 406(b), or 25 percent of $37,556

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in past-due benefits.

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interpreted by Crawford, I find that Counsel has demonstrated that

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a 25 percent fee is reasonable for this case.

After applying the Gisbrecht factors, as

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A.

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Substandard performance by a legal representative warrants a

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reduction in a § 406(b) fee award, as Gisbrecht and Crawford make

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clear.

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Examples of substandard representation include poor preparation for

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hearings, failing to meet briefing deadlines, submitting documents

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to the court that are void of legal citations, and overbilling

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one’s clients.

18

Sec’y of Health and Human Servs., 707 F.2d 246, 250-51 (6th Cir.

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1983)).

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substandard.

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good quality, and it persuaded the court to award Abed benefits

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despite denials by Disability Determination Services, an ALJ, and

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the Appeals Council.

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this factor.

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B.

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Counsel has won benefits for her client in this case.

Character of Representation

See Gisbrecht, 535 U.S. at 808; Crawford, 586 F.3d at 1151.

The

Dunnigan, 2009 WL 6067058, at *11 (citing Lewis v.

performance

of

Counsel

in

this

case

was

not

Counsel’s briefing on the merits was useful, was of

Accordingly, no reduction is warranted under

The Results Achieved
“The

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circumstances of the case in which the result is achieved, however,

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are important to the court’s assessment of this factor.
OPINION AND ORDER

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The

1

inquiry focuses on whether counsel’s efforts made a ‘meaningful and

2

material contribution towards the result achieved[.]’”

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2009 WL 6067058, at *11 (citing Lind v. Astrue, No. SACV 03-01499

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AN, 2009 WL 499070, at *4 (C.D. Cal. 2009)).

Dunnigan,

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As to this factor, Counsel points out that she “obtained from

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this court an order for payment of benefits. This was obtained

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because the Court agreed with [Abed]’s position that the ALJ’s

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decision was not substantially justified in several key areas, and

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errors of law were made which deprived [Abed] of benefits to which

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she was entitled.”

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court agrees with Counsel.

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(Mem. Supp. Pl.’s Mot. (doc. #36) at 4.)

The

This was not a case where the Government eases an attorney’s

13

task by conceding the ALJ’s errors and agreeing to remand.

14

Dunnigan, 2009 WL 6067058, at *12.

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twenty-one page brief which devoted seventeen pages to arguments

16

opposing Abed’s allegations. Counsel then filed an additional five

17

pages of arguments on the merits in her reply brief.

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the parties’ dispute the court issued a thirty-six page Opinion and

19

Order, which demonstrates that, unlike Dunnigan, the scope of the

20

case was not limited.

21

was limited to a single issue, whether or not the claimant’s

22

condition met the requirements of a listing).

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factor

24

agreement.

does

not

See

Rather, the Government filed a

To resolve

Cf. id. (noting that the scope of the case

warrant

reduction

from

the

Accordingly, this
25

percent

fee

25

C.

26

The court may reduce a § 406(b) fee for delays in the

27

proceedings attributable to the claimant’s attorney. Crawford, 586

28

F.3d at 1151.

Dilatoriness

The Gisbrecht court observed that a reduction on

OPINION AND ORDER

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1

this

2

inappropriately caused delay in proceedings, so that the attorney

3

“will not profit from the accumulation of benefits” while the case

4

is pending.

ground

is

appropriate

if

the

requesting

attorney

Gisbrecht, 535 U.S. at 808.

5

The court finds Wojtecki v. Comm’r Soc. Sec., No. CV-09-584,

6

2011 WL 1694462 (D. Or. Apr. 6, 2011), instructive on this matter.

7

In Wojtecki, the plaintiff’s counsel had requested two extensions

8

of time to file the opening brief, totaling seventy-five days. Id.

9

at *3.

Plaintiff’s counsel also had requested a 30-day extension

10

to file the reply brief.

11

“[t]hese extensions of time are not excessive and do not suggest

12

any intent to unnecessarily delay the proceedings in order to

13

maximize the attorney’s fee award. Thus, no deduction for delay is

14

warranted.”

15

Id.

Judge Stewart determined that,

Id.

Here, on August 27, 2009, Counsel requested a 60-day extension

16

of time to file the Opening Brief in this matter.

17

Counsel requested this extension due to her workload during that

18

time period.

19

thirty-four3 days to file the Opening Brief because “of Counsel’s

20

holiday schedule and time off for family visits (Counsel’s 90-year

21

old mother is currently visiting for 2 weeks, and Counsel plans to

22

spend a week in Los Angeles for Thanksgiving).”

23

February 18, 2010, Counsel requested a 2-day extension of time to

24

file Abed’s Reply Brief.

(Doc. #15.)

(Doc. #14, 15.)

Counsel then requested an additional

(Doc. #27, 28.)

(Doc. #18.)

On

The extensions given to

25
26
27
28

3

On October 27, 2009, Counsel submitted an amended request to
the court because she had erroneously calculated the date in her
second motion for extension of time. (Doc. #19, 20.) As a result,
Counsel only received an additional thirty days to file the Opening
Brief, rather than the thirty-four initially requested. (Id.)
OPINION AND ORDER

12

1

Counsel total 92 days, which is analogous to the 105 total days of

2

extension granted in Wojtecki.

3

that the requests were intended to cause delay in the proceedings,

4

and since the requests were limited in frequency and duration,

5

Counsel

6

Accordingly, as in Wojtecki, reduction under this factor is not

7

warranted.

will

not

profit

No evidence in the record suggests

from

an

accumulation

of

benefits.

8

D.

9

The court may reduce a § 406(b) fee “for . . . benefits that

Proportionality of the Fee Request to the Time Expended

10

are not in proportion to the time spent on the case.”

11

586 F.3d at 1151 (citing Gisbrecht, 535 U.S. at 808, 122 S.Ct.

12

1817).

13

in comparison to the amount of time counsel spent on the case, a

14

downward adjustment is . . . in order.”

15

808. In making this determination, the court may look to counsel’s

16

record of hours spent and a statement of normal hourly billing.

17

Crawford, 586 F.3d at 1151.

Crawford,

The Supreme Court explained, “[i]f the benefits are large

Gisbrecht, 535 U.S. at

18

Counsel has submitted time records in support of her request

19

for EAJA fees indicating that a total of 46.1 hours have been spent

20

on Abed’s case, which results in an effective hourly rate of

21

$203.67 ($9,389.00/ 46.1), if the full 25 percent fee was approved.

22

Counsel normally works on a contingent basis and does not have a

23

normal hourly rate.

24

reasonable “when considered in context of customary billing rates,

25

risk of non-payment, and other relevant factors[.]”

Counsel therefore argues that her fee is

(Id. at 5.)

26

For instance, Counsel points out that the Oregon State Bar

27

(“OSB”) 2007 Economic Survey (“the Survey”) establishes that the

28

average hourly non-contingent billing rate in Portland is $244 per
OPINION AND ORDER

13

1

hour.

2

issue, but the OSB 1998 Survey establishes that Portland attorneys

3

spend 15% of their time on contingency matters and derive 17% of

4

their income from such matters.

5

“establishes that average Oregon attorneys more than make up in

6

contingency-enhanced rates for the time they expend on contingency

7

cases they lose (by a factor of 17/15).”

8

original).

9

multiplier of 17/15 here.

10

(Id. at 5-6.)

Apparently, the Survey does not address the

(Id. at 6.)

Counsel claims this

(Id.) (emphasis in the

Counsel contends that this statistic requires use of a
(Id.)

Counsel next claims that, in Social Security cases, there is

11

only a 33.52% chance of winning benefits for the claimant.

12

In order to make for the risk of non-payment, Counsel argues that

13

a contingency multiplier of 2.98 (100/33.52) is warranted to make

14

up for the risk of non-payment.

15

to the average hourly rate of $244 produces a rate of $824.07 an

16

hour.

17

average for all cases in which in which § 406(b) fees are awarded,

18

and is the rate that would properly compensate Counsel for the risk

19

of non-payment.

20

406(b) award is significantly lower than $824.07 per hour, and so

21

the award in some cases must be higher than $824.07 for the average

22

to be $824.07.”

23

(Id.)

(Id.)

(Id.)

Applying both multipliers

Counsel claims this effective hourly rate is the

(Id.)

Counsel then states, “in most cases, the §

(Id. at 7.)

This argument misses the mark entirely.

The Ninth Circuit’s

24

decision in Crawford made clear that while risk is an appropriate

25

factor to consider in evaluating a § 406(b) fee award, the risk

26

analysis must be specific to the case at bar.

27

Astrue, No. CV 05-890-CV, 2011 WL 2116987, at *3 (D. Or. Apr. 28,

28

2011) (rejecting the same lodestar approach for failing to comply
OPINION AND ORDER

14

See also Albert v.

1

with

2

specific); see also Stokes v. Astrue, No. 09-cv-01264, 2011 WL

3

3322563 (D. Or. July 8, 2011) (stating that, “the product of the

4

lodestar calculation can at best be of extremely limited utility in

5

assessing the reasonableness of a contingency fee.”)

6

Crawford’s

directive

that

risk

analysis

should

be

case

Counsel did attempt to make arguments which she deemed case

7

specific, however.

8

because

9

For example, she claims the case was risky

the Appeals Council, attorneys specializing in social
security law, affirmed the decision of the [ALJ], another
specialist in social security law. That means that by
the time this case made it to federal court the case had
gone through the initial application, reconsideration, a
hearing in front of an [ALJ] and an appeal to a council
of attorneys whose specific and sole function is [to]
review social security disability decisions.
That is
four levels of intensive review with the fifth one being
this appeal to [the] United States District Court. Taking
a Social Security case at the federal court for an
attorney involves considerable risk.

10
11
12
13
14
15

(Mem. Supp. Pl.’s Mot. (doc. #36) at 9.)

The court disagrees with

16
Counsel

that

these

arguments

are

case

specific

because

the

17
procedural posture delineated above is the same in every Social
18
Security case that reaches federal court.
19
The

court

finds

Stokes

instructive

in

assessing

the

20
proportionality of the fee requested by Counsel.

In Stokes, Judge

21
Papak recommended that the Commissioner’s decision be reversed and
22
remanded for a calculation and award of benefits.

Stokes, 2011 WL

23
3322563, at *1.
24

The claimant’s counsel sought $10,275.59 in §

406(b) fees, or 25% of the retroactive benefits awarded.4

Id. at

25
*4.

Counsel had spent 37.5 hours of attorney time on the case,

26
27
28

4

Counsel was previously awarded $6,193.09 in EAJA fees.
Id. at *1.
OPINION AND ORDER

15

1

which resulted in an effective hourly rate of $274.02 ($10,275.59/

2

37.5).

3

“compensation at an effective hourly rate of $274.02 would not

4

disproportionately overcompensate Stokes’ counsel[.]” Id.

5

Id.

While

I

at

*6.

reject

Judge

Papak

Counsel’s

ultimately

comparative

concluded

approach,

I

that,

find

6

$9,389.00 in § 406(b) fees to be reasonable based on the following

7

reasons.

8

contingent billing rate in Portland is $244 per hour, which is

9

significantly greater than the $203.67 an hour resulting from a 25%

First, the OSB Survey shows that the average hourly non-

10

fee award in this case.

11

Supp. 2d. 1214, 1215 (D. Or. 2007), Judge Mosman observed that

12

“[t]here is some consensus among the district courts that 20-40

13

hours is a reasonable amount of time to spend on a Social Security

14

case that does not present particular difficulty.”

15

also stated that absent unusual circumstances or complexity, “this

16

range provides an accurate framework for measuring whether the

17

amount of time counsel spent is reasonable.”

18

Counsel spent 46.1 hours on this case, which, in the court’s view,

19

is slightly more than necessary for the amount work completed

20

before the district court. Nevertheless, had Counsel only spent 40

21

hours on this matter, a reasonable amount of time under the Harden

22

standard,

23

($9,389.00/ 40). Certainly $37,556.00 in past-due benefits is not

24

insignificant, but it is not so large as to make a 25 percent fee

25

disproportionate to the time Counsel spent on the case.

the

Additionally, in Harden v. Comm’r, 497 F.

effective

hourly

rate

would

Judge Mosman

Id. at 1216.

still

be

Here,

$234.73

26

In short, Crawford made clear that district courts have an

27

“affirmative duty” to assure the reasonableness of a § 406(b) fee

28

award because the SSA “has no direct interest in how much of the
OPINION AND ORDER

16

1

award goes to counsel and how much to the disabled person[.]” Id.

2

at 1149.

3

after taking into account Counsel’s miscalculation.

I find that a reduction is not warranted in this case

Conclusion

4
5

For the reasons stated above, Abed’s Stipulated Motion For

6

EAJA Fees (doc. #33) and Abed’s Motion For Approval Of Attorneys

7

Fees (doc. #35) are GRANTED.

8

406(b) fees less the $7,499.99 awarded in EAJA fees.

9
10

Counsel is awarded $9,389.00 in §

IT IS SO ORDERED.
Dated this _21__ day of October, 2011.

11
/s/ Dennis J. Hubel
_________________________________
Dennis James Hubel
Unites States Magistrate Judge

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13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
OPINION AND ORDER

17