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Atkinson v. Berryhill

United States District Court, D. Oregon, Portland Division

August 11, 2017

NANCY A. BERRYHILL, acting Commissioner of Social Security Defendant.


          JOHN V. ACOSTA United States Magistrate Judge


         Before the court is Eve Christine Atkinson's ("Atkinson") unopposed Motion for Approval of Attorney Fees Pursuant to 42 U.S.C. § 406(b). Although Atkinson is the claimant in this case, the real party in interest to this motion is her attorney Marlene R. Yesquen ("Yesquen"), and the 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 (2002). Having reviewed the proceedings below and the amount of fees sought, the court concludes Yesquen is entitled to fees under section 406(b) in the amount of $18, 300.

         Procedural Background

         Atkinson filed her application for Disability Insurance Benefits and Supplemental Security Income Benefits ("Benefits") on September 20, 2010, and October 15, 2010, respectively, alleging an onset date of August 23, 2010. Her application was denied initially and on reconsideration. On October 11, 2012, an Administrative Law Judge ("ALJ") issued an opinion in which she found Atkinson not disabled and, therefore, not entitled to Benefits. That decision became the final decision of the Commissioner on June 2, 2014, when the Appeals Council denied Atkinson's request for review.

         Atkinson sought review of the Commissioner's decision by filing a complaint in this court on March 13, 2015. Atkinson alleged the ALJ erred in five respects: (1) rejecting the opinions and conclusions of Atkinson's physician, Dr. Kellog, and other medical providers without clear or convincing reasons; (2) substituting her own opinion for that of Atkinson's doctor, and making independent medical findings, and speculative inferences based on medical evidence; (3) not properly considering the combined effect of Atkinson's multiple impairments; (4) rejecting Plaintiffs pain and other subjective testimony without clear and convincing reasons; and (5) basing her decision on the opinion of the vocational expert, based on an incomplete hypothetical, which did not accurately reflect Atkinson's condition, rather than the expert's answers concerning Atkinson's actual condition. Additionally, Atkinson asserted the Appeals Council improperly rejected medical evidence submitted as new, and material evidence related to the medical conditions considered by the ALJ in her decision of October 11, 2012. On September 9, 2015, this court issued an Opinion and Order, accepting Atkinson's arguments and remanding the Commissioner's decision denying Atkinson's applications (the "Opinion"). (ECF No. 25.) Benefits were awarded in the amount of $123, 006.00.


         The parties do not dispute Atkinson is the prevailing party in this matter. Additionally, the Commissioner does not challenge the amount Yesquen requests as attorney fees. Nonetheless, because the Commissioner does not have a direct stake in the allocation of Atkinson's attorney fees, the court must ensure the calculation of fees is reasonable to prevent Yesquen from potentially receiving a windfall. See Gisbrecht, 535 U.S. at 798 n.6 ("We also note that the Commissioner of Social Security . .. 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, a 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) (2015). 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, *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.

         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. Atkinson and Yesquen executed a contingent-fee agreement, which provided that if Yesquen obtained payment of past-due benefits, Atkinson would pay her twenty-five percent of the past-due benefits awarded. (PL's Am. Mot. for Attorney Fees (ECF No. 31)("Pl.'s Mot.") at 2.) The terms of this agreement are thus within the statute's limits.

         The next step is to confirm that the fee requested by counsel does not exceed the statute's twenty-five percent ceiling. This determination requires evidence of the retroactive benefits to be paid to Atkinson. Yesquen provided a document from the Society Security Administration (the "Administration") entitled "Notice of Award, " which details the retroactive benefits due Atkinson and states it has withheld $30, 751.50 in reserve to pay any attorney fees awarded by the court, which may not exceed twenty-five percent past due benefits. (PL's Mot. Ex. A at 3.) Yesquen seeks $18, 300.00, less than the amount withheld, asserting Atkinson's retroactive benefits equaled approximately $123, 006.00, an amount consistent with the sum withheld by the Administration for attorney fees. After determining the fee agreement and the amount requested are in accordance with the statutory limits, this court next turns to "its primary inquiry, the reasonableness of the fee sought." Dunnigan, 2009 WL 6067058, at *10.

         II. Reasonableness Factors

         An order for an award of benefits should not be viewed in isolation, nor can it be presumed always to require a fee award of twenty-five percent of a claimant's retroactive benefits award. Dunnigan, 2009 WL 6067058, at * 12. If obtaining benefits always supported awarding fees for the maximum amount provided for by statue, the other Gisbrecht factors and the trial courts' assigned task of '"making reasonableness determinations in a wide variety of contexts'" would be unnecessary. Id., (quoting ...

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