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Haight v. Commissioner Social Security Administration

United States District Court, D. Oregon, Portland Division

January 30, 2018



          JOHN V. ACOSTA United States Magistrate Judge


         Before the court is Trisha R. Haight's ("Haight's") unopposed Motion for Approval of Attorney Fees Pursuant to 42 U, S.C, § 406(b). (ECF No. 30, ("Motion").) Although Haight is the claimant in this case, the real party in interest to this motion is her attorney Tim Wilbom ("Wilbom"). The Commissioner of the Social Security Administration (the "Commissioner") does not oppose the motion, but merely acts in a maimer 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 Wilbom is entitled to fees under Section 406(b) in the amount of $12, 379.63, less the Equal Access to Justice Act (28 U.S.C. § 2412) ("EAJA") fees already awarded in the amount of $5, 232.70, for a total amount of $7, 146.93.

         Procedural Background

         Haight filed her applications for Disability Insurance and Supplemental Security Income ("SSI") disability benefits on March 25, 2011, alleging an onset date of February 4, 2011. (Pl.'s Br., ECF No. 16, at 1-2.) Her initial applications were denied, as were reconsiderations of her applications. (Id.) On May 20, 2013, an Administrative Law Judge ("ALJ") issued an opinion in which she found Haight not disabled, and, therefore, not entitled to benefits. (Id.) The ALJ engaged in a five-step sequential evaluation process used to evaluate SSI claims. The ALJ found Haight: (I) suffered from fibromyalgia, lower back pain, vertigo, somatoform disorder, dysthymia, and substance abuse; (2) retained the residual functional capacity to perform light work; and (3) was able to return to her past relevant work as a general office clerk. (Id. at 9.) Accordingly, the ALJ determined Haight was not disabled between her onset date of February 4, 2011 and May 20, 2013. That decision became the final decision of the Commissioner on December 15, 2014, when the Appeals Council denied Haight's request for review. (Id. at 2.)

         Haight sought review of the Commissioner's decision by filing a complaint in this court on February 14, 2015. (Complaint, ECF No. 1.) Haight alleged the ALJ erred in three respects: (1) rejecting the medical evidence; (2) failing to comply with regulations and rulings that govern the evaluation of mental impairments; and (3) improperly addressing the lay witness statement. (Id. at 10, 11, 15.) Additionally, Haight asserted that the ALJ's vocational hypothetical was invalid. (Id. at 18.) Both parties stipulated that the case be reversed and remanded to the Commisssioner. (ECF No. 23.) Accordingly, on January 12, 2016, this court issued an Order for Remand, accepting Haight's arguments and submitting the Commissioner's decision for further administrative proceedings. (ECF No. 24.) Benefits were awarded in the amount of $51, 902.00.

         On April 1, 2016, Haight filed a Motion & Memorandum for Award of Fees Pursuant to the Equal Access to Justice Act (ECF No. 26) ("Motion for EAJA fees") in the amount of $5, 232.70. On April 5, 2016, this court entered an Order (ECF No. 29) granting Haight's request for fees pursuant to the EAJA in the full amount stipulated by the parties. Haight filed the instant motion for attorney fees in the amount of $12, 379.63 under Section 406(b) on August 27, 2017. This amount is to be reduced by the funds Wilbom already has recovered under the EAJA, bringing the net amount requested to $7, 146.93. The Commissioner does not oppose the fees.


         The parties do not dispute Haight is the prevailing party in this matter. Additionally, the Commissioner does not challenge the amount Wilbom requests as attorney fees. Nevertheless, because the Commissioner does not have a direct stake in the allocation of Wilbom's attorney fees, the court must ensure the calculation of fees is reasonable to prevent Wilbom from potentially receiving a windfall. See Gisbrecht v. Barnhart, 535 U.S. 789, 798 n.6 (2002) ("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) (2017). 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.l7). 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. Gishrecht, 535 U.S, at 796.

          I. Fee Agreement

         Under the Supreme Court's decision in Gishrecht, the court first examines the contingent fee agreement to determine whether it is within the statutory twenty-five percent cap, Haight and Wilbom executed a contingent fee agreement, that provided if Wilbom obtained payment of past due benefits, Haight would pay him up to twenty-five percent of the past due benefits awarded. (Motion, Ex. 1, at 9.) 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 Haight. Wilbom provided a document from the Social Security Administration (the "Administration") entitled "Notice of Award, " detailing the retroactive benefits due Haight and states it has withheld $12, 975.00 in reserve to pay any attorney fees awarded by the court, which represents twenty-five percent of the past due benefits. (Motion, Ex. I, at 4.) Wilbom seeks nearly the full amount withheld, asserting Haight's retroactive benefits equaled approximately $51, 902, 00, an amount consistent with the sum withheld by the Administration for attorney fees. (Motion, Ex. I, at 3.) After determining the fee agreement and the amount requested are in accordance with the statutory limits, the court next turns to "its primary inquiry, the reasonableness of the fee sought, " Dunnigan, 2009 WL 6067058, at *10.

         II.Reasonableness ...

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