United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
JOHN V. ACOSTA, Magistrate Judge.
Before the court is Janice Davis's ("Davis") unopposed Motion for Attorney Fees under 42 U.S.C. § 406(b). A court may award attorney fees to the attorney of a successful Social Security claimant, so long as the award is "a reasonable fee for such representation" and is "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 Davis is the claimant in this case, the real party in interest to this motion is her attorney Rory Linerud ("Linerud"). The Commissioner of the Social Security Administration ("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 fee award of $6, 333.67 is reasonable.
Davis filed for Supplemental Security Income ("SSI") benefits on June 22, 1999. Davis v. Astrue, Civil No. 09-649-AC, 2011 WL 31081, *1 (D. Or. Jan. 5, 2011). Her claim was denied initially and on reconsideration. ( Id. ) Davis requested, obtained, and appeared for a hearing before an Administrative Law Judge ("ALJ"). ( Id. ) The ALJ issued a decision on July 26, 2001, finding Davis not disabled. ( Id. ) The Appeals Council denied Davis's timely request for review, making the ALJ's opinion the Commissioner's final decision. ( Id. ) A request for reivew was filed in this court on June 10, 2009. ( Id. )
The court reversed the ALJ's decision for erroneously applying Medical-Vocational Guidelines ("the grids") and failing to consult a vocational expert. ( Id. at *10). The court affirmed the remainder of the ALJ's findings. ( Id. ) The court's reversal resulted in the Commissioners awarding Davis $42, 721.56 in back SSI payments. (Pl.'s Mem. 1, ECF No. 34-1).
The parties do not dispute that Davis is the prevailing party in this matter. The Commissioner does not challenge the amount Linerud requests as attorney fees. However, because the Commissioner does not have a direct stake in the allocation of Davis's attorney's fees, the court must ensure the calculation of fees is reasonable to prevent Linerud from potentially receiving a windfall. See Gisbrecht, 535 U.S. at 798 n.6 ("We also note that the Commissioner of Social Security here... has no direct financial stake in the answer to the § 406(b) question.").
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 claimant 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 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. In the motion for attorney fees, Linerud requests the court award $10, 329.89, just under twenty-five percent of Davis's retroactive-benefit award. Because Linerud received a $2, 963.23 fee award under the EAJA, that amount will offset part of the $10, 329.89 award if the court rules in his favor. Thus, $7, 366.66 is the total amount at issue.
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 considered by the Ninth Circuit when evaluating the requested fee's reasonableness, as derived from the Court's analysis in Gisbrecht are:
1. the character of the representation, specifically, whether the ...