United States District Court, District of Columbia
E. BOASBERG United States District Judge.
Louis Shaderock obtained 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 Section 406(b) of the Social Security
Act. This amount, which represents 25% of his past-due
benefits and is the maximum percentage allowable under the
statute, is not opposed by the Government. Concluding that
Plaintiff's contingent-fee agreement with his attorney is
reasonable, the Court will grant his Motion and award
Shaderock $21, 016.59, which equals the full sum requested
minus a prior Equal Access to Justice Act (EAJA) award.
April 2004, Plaintiff filed for DIB and SSI benefits, but his
initial application and reconsideration were both denied.
See ECF No. 23-2 (Motion) at 1. An Administrative
Law Judge denied his claim on appeal in 2009, and the Appeals
Council affirmed that decision in 2011. Id.
Shaderock then filed this action in 2012 and retained counsel
in 2013 under a contingency-fee agreement that entitled
counsel to 25% of any recovered benefits. See Mot.
at 1; ECF Nos. 1 (Complaint), 23-7 (Fee Agreement). After a
review on the merits, this Court remanded the matter for
further administrative proceedings, see ECF No. 17,
and subsequently awarded Plaintiff $5, 721.03 in attorney
fees under EAJA, 28 U.S.C. § 2412. See ECF No.
19 (Order). Counsel, however, only received $3, 993.03 of
this amount due to a deduction taken from that award for a
debt owed by Plaintiff. See ECF No. 23-5 (Offset
Notice). On January 7, 2016, Shaderock received a Fully
Favorable Decision for his past-due and continued benefits.
See ECF No. 23-3 (Fully Favorable Decision). The
Government issued a Notice of Award for his DIB claim on
February 16, 2016, and for his SSI claim on May 2, 2016.
See ECF Nos. 23-4 (DIB Notice of Award), 23-6 (SSI
Notice of Award). Plaintiff now files a Motion for Attorney
Fees under 42 U.S.C. § 406(b) to request $25, 009.62 -
25% of his past-due benefits.
counsel expended 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 worked on Social Security cases
since 1988, handling hundreds of cases at the district-court
level and 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 EAJA award is included in the 25% cap of attorney
fees pursuant to § 406(b) and should be refunded to the
extent necessary. Id. at 4.
§ 406(b) of the Social Security Act, the Court may award
an attorney who successfully represents a claimant in court
“a reasonable fee for such representation, not in
excess of 25 percent of . . . past-due benefits.” 42
U.S.C. § 406(b)(1)(A). Section 406(b) is designed to
“control, not to displace, fee agreements between
Social Security benefits claimants and their counsel.”
Gisbrecht v. Barnhart, 535 U.S. 789, 793 (2002).
Specifically, § 406(b) requires a court to review
“such 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 statutory
maximum, the court determines its reasonableness based on the
particulars of the case. 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 the
case for the benefits to accrue, or the compensation is too
large relative to the time spent on the case.
Gisbrecht, 535 U.S. at 808 (citations omitted).
Courts will also consider the attorney's risk of loss,
her expertise 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, at *7 (D.D.C. July 1, 2015); Buljina,
828 F.Supp.2d at 113-14.
contingent-fee arrangement of 25% is the same as the
statutory limit prescribed by § 406(b). As the Court
must next 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 accrue over a longer period; (3)
whether there was a risk of loss; (4) the difficulty of the
case; and (5) the size of the compensation relative to the
time spent on the case.
Quality of Representation
quality of the representation in this case was at least
adequate. Prior to retaining an attorney, Plaintiff had been
unsuccessful in his attempts to obtain DIB or SSI benefits.
See Mot. at 1. Once counsel became involved, he was
able to secure a substantial award. See Crawford v.
Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (describing
counsel's performance as “excellent” for
securing favorable result). The value of Plaintiff's
award secured by counsel, moreover, is larger than the
past-due benefits calculation of $100, 038.50 under §
406(b) because Plaintiff will continue to receive benefits
for his DIB claim until he dies, reaches retirement age, or
is no longer disabled. See Mot. at 8; Resp. at 4.
Representation that yields a favorable decision is precisely
the type of result plaintiffs seek and that a contingent-fee
arrangement makes available to previously unsuccessful
plaintiffs. The Court thus finds that the quality of
representation was solid.
counsel, moreover, was not responsible for delaying the case.
See Lasley v. Comm'r of Social Security, 771
F.3d 308, 310 (6th Cir. 2014) (holding contingent-fee
arrangement unreasonable where attorney delayed filing §
406(b) motion). Attorneys should not delay proceedings so
that benefits accrue over an extended period 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
months after receiving the Notice 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 delay to ...