United States District Court, D. Oregon, Eugene Division
LEE J. FISCHER, Plaintiff,
COMMISSIONER, Social Security Administration, Defendant.
OPINION AND ORDER
PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE.
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.
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.
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).
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
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.
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.
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 . . .
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
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 ...