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Fischer v. Commissioner Social Security Administration

United States District Court, D. Oregon, Eugene Division

September 8, 2017

LEE J. FISCHER, Plaintiff,
COMMISSIONER, Social Security Administration, Defendant.



         Before the Court is plaintiff Lee J. Fischer's Motion for Approval of Attorney Fees Pursuant to 42 U.S.C. § 406(b). (Docket No. 24). The Commissioner of Social Security (the “Commissioner”) does not object. The Court has reviewed the proceedings and the amount of fees sought, and GRANTS plaintiff's Motion. The Court awards fees of $18, 705.18, less the already-awarded Equal Access to Justice Act fees of $7, 707.20, for a net of $10, 997.98.


         Plaintiff filed applications for Title II Disabled Child's Insurance Benefits on October 29, 2012, and Supplemental Security Income Benefits on September 3, 2013. Tr. 19. Her application for Disabled Child's benefits was denied initially and on reconsideration. Id. The Supplemental Security Income Benefits application was escalated so it could be considered alongside the Disabled Child's benefits application. Id. On October 23, 2014, an Administrative Law Judge (“ALJ”) issued decision finding plaintiff disabled as of April 2, 2012-after her twenty-second birthday-but not before. Tr. 20, 31. This entitled plaintiff to Supplemental Social Security Income, but not Disabled Child's benefits. Tr. 30-31; 42 U.S.C. § 402(d)(1)(B)(ii). That decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. Tr. 1-7.[1]

         Plaintiff sought review of the Commissioner's decision by filing a Complaint in this court on April 29, 2016. (Docket No. 1). Plaintiff argued that the ALJ committed three legal errors: (1) he did not give any weight to the opinions of treating physicians James Buie, M.D., and John Ford, M.D., concerning the period between December 1, 2009, and April 2, 2012; (2) he did not consider the observations of five lay third-party witnesses for the time before April 2, 2012; and (3) he did not comply with Social Security Ruling 83-20. (Docket No. 8). The Commissioner conceded that the ALJ erred by not crediting certain testimony, but argued that the appropriate remedy was remand for further proceedings and evaluation of a disability onset date. Def. Br. (Docket No. 13). On February 24, 2017, the Court issued an Opinion and Order finding that the ALJ erred by not giving weight to the physicians' opinions and not considering the third-party testimony, for the period before April 2, 2012. (Docket No. 15). The Court credited that testimony as true, found that the record established a disability onset date of December 1, 2009, and remanded for calculation and immediate award of benefits. The Court entered judgment on February 25, 2017. (Docket No. 16).

         The Commissioner subsequently filed a Motion to Amend Judgment, i.e., to reconsider. (Docket No. 17). The Commissioner argued that the Court committed clear error in evaluating Dr. Ford's testimony, and in applying the credit-as-true-doctrine. The Court denied the Commissioner's Motion to Amend on May 10, 2017. (Docket No. 19).

         On August 9, 2017, the Court granted plaintiff's Stipulated Motion for Entry of Order Awarding Attorney's Fees Pursuant to EAJA (the Equal Access to Justice Act, 28 U.S.C. § 2412(d)). (Docket Nos. 20-23). The Court awarded $7, 707.20 in attorney fees and $22.08 in expenses. (Docket No. 23). On July 15, 2017, the Social Security Administration (“Administration”) issued a notice of award entitling plaintiff to benefits beginning December 2009. (Docket 24-1). The Administration determined past-due benefits of $74, 820.70. Id., at 3. Plaintiff received the notice on July 17, 2017. Id., at 1. On August 28, 2017, plaintiff filed this Motion, which is timely under L.R. 4000-8. (Docket No. 24). The Commissioner does not oppose plaintiff's Motion.


         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). 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 *6 (D. Or. Dec. 23, 2009) (quoting Gisbrecht v. Barnhart, 535 U.S. 789, at 807 n.17 (2002)), adopted 2010 WL 1029809 (D. Or. Mar. 17, 2010). A § 406(b) fees 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. Id., at *6. When a court approves both an EAJA fees award and a § 406(b) fees payment, the claimant's attorney must refund to the claimant the lesser of the two. Gisbrecht, 535 U.S. at 796.


         The parties do not dispute that plaintiff is the prevailing party. The Commissioner does not challenge the fees requested. Nonetheless, because the Commissioner does not have a direct stake in the allocation of attorney fees, the Court must ensure that fees are reasonable. See Gisbrecht, 535 U.S. at 798 n.6 (“[T]he Commissioner of Social Security . . . has no direct financial stake in the answer to the § 406(b) question . . . .”).

         I. Fee Agreement

         Under Gisbrecht, the Court first examines the contingent fee agreement to ensure it is within the statutory 25% limit. 535 U.S. at 808. Plaintiff and her attorney executed a contingent-fee agreement, which provided that if her attorney obtained payment of past-due benefits, plaintiff would pay 25% of the past-due benefits awarded. (Docket No. 24-2). The terms of this agreement are thus within the statute's limits.

         The next step is to confirm that the fees requested do not exceed the statute's 25% ceiling. This requires evidence of the retroactive benefits to be paid. Plaintiff has provided a notice of award from the Administration, detailing the retroactive benefits due to plaintiff and stating that the Administration has withheld funds in reserve to pay any attorney fees awarded, which may not exceed 25% of past-due benefits. (Docket No. 24-1). Plaintiff's attorney seeks fees of 25% of the amount of retroactive benefits. After determining that the fee agreement and amount requested ...

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