United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
JOHN V. ACOSTA, Magistrate Judge.
Before the court is Thomas B. O'Cain's ("O'Cain") Unopposed Motion for Attorney Fees Under 42 U.S.C. § 406(B), which permits a court to award attorney fees to the attorney of a successful Social Security claimant, so long as such award is "a reasonable fee for such representation" and "not in excess of 25 percent of the total of the past-due benefits to which the claimant is entitled...." 42 U.S.C. § 406(b)(1)(A). Although OCain is the claimant in this case, the real party in interest to this motion is his attorney James Coon ("Coon"). The Commissioner of Social Security ("Commissioner") does not oppose the motion, but merely acts in a manner similar to "a trustee for the claimant." Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002). Having reviewed the proceedings below and the amount of fees sought, the court concludes a reasonable award fee in this case is $6, 744.85
O'Cain filed applications for Supplemental Security Income and Disability Insurance Benefits on July 27, 2006. Both applications were denied initially and upon reconsideration. O'Cain filed a request for, and received, a hearing before Administrative Law Judge Riley J. Atkins (the "ALJ"), who issued a decision on December 17, 2009, finding O'Cain not disabled. The Appeals Counsel denied O'Cain's timely request for review, making the ALJ's opinion the Commissioner's final decision. O'Cain filed a complaint for review of the Commissioner's final decision.
In his complaint, the O'Cain alleged that the ALJ erred by "1) failing to include all of his limitations into the RFC assessment; and 2) posing incomplete hypothetical questions to the vocational expert ("VE") at the hearing." O'Cain v. Astrue, No. 3:10-CV-01547-AC, 2012 WL 1664771, at *3 (D. Or. May 10, 2012). The Commissioner conceded that the ALJ erred and that reversal was appropriate, but the parties disagreed on whether the court should remand for an award of benefits or remand for further administrative proceedings. On May 10, 2012, this court issued an Opinion and Order reversing the Commissioner's decision and remanding the case for further proceedings. The court concluded there was not enough evidence on the record to establish O'Cain's right to an award of benefits and instructed the ALJ on remand to conduct a hearing and obtain new testimony from O'Cain's medical expert and, if necessary, the Commissioner's vocational expert.
After entering a judgment in favor of a Social Security claimant represented by counsel, the court "may determine and allow as part of its judgment a reasonable fee for such representation, not in excess of twenty-five percent of the total of the past-due benefits to which the clamant is entitled by reason of such judgment." 42 U.S.C. § 406(b)(1)(A). A "twenty-five percent contingent-fee award is not automatic or even presumed; the statute does not create any presumption in favor of the agreed upon amount.'" Dunnigan v. Astrue, No. CV 07-1645-AC, 2009 WL 6067058, at *7 (D. Or. Dec. 23, 2009), adopted 2010 WL 1029809 (March 17, 2010) (quoting Gisbrecht, 535 U.S. at 807 n.17). A section 406(b) fee award is paid from the claimant's retroactive benefits, and an attorney receiving such an award may not seek any other compensation from the claimant. Dunnigan, 2009 WL 6067058, at *7. Accordingly, when a court approves both an EAJA fee and a section 406(b) fee payment, the claimant's attorney must refund to the claimant the amount of the smaller of the two payments. Gisbrecht, 535 U.S. at 796.
I. Fee Agreement
Under the Supreme Court's decision in Gisbrecht, the court first examines the contingent fee agreement to determine whether it is within the statutory twenty-five percent cap. O'Cain and Cook executed a contingent-fee agreement, providing that if it became necessary to appeal O'Cain's case to federal court and Coon obtained payment, O'Cain would pay Coon either twenty-five percent of O'Cain's past-due benefits or whatever amount Coon was able to obtain under the EAJA, whichever was greater. In the motion for attorney fees Coon requests the court award $10, 000.00, which is twelve percent of O'Cain's past-due benefits award. In addition, Coon received a $1, 622.84 attorney fee award under the EAJA, which will offset part of the $10, 000.00 award if the court rules in his favor. Thus, at issue is a total award of $8, 377.16.
Counsel bears the burden to establish the reasonableness of the requested fee. Gisbrecht, 535 U.S. at 807. While the court must acknowledge the "primacy of lawful attorney-client fee agreements, " contingent fee agreements that fail to "yield reasonable results in particular cases" may be rejected. Id. at 793, 807. The court must ensure a disabled claimant is protected from surrendering retroactive disability benefits in a disproportionate payment to counsel. Crawford v. Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) ( en banc ) (citing Gisbrecht, 535 U.S. at 808). The four factors to be considered when evaluating the requested fee's reasonableness have been identified by the Ninth Circuit as derived from the Court's analysis in Gisbrecht:
1. the character of the representation, specifically, whether the representation was substandard;
2. the results the representative achieved;
3. any delay attributable to the attorney seeking ...