United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN, Chief United States District Judge
matter comes before me on Plaintiff Jaime Gambrell's
unopposed Motion for Attorney Fees , pursuant to 42
U.S.C. § 406(b). For the reasons below, I GRANT the
Motion  and conclude Ms. Gambrell's attorney is
entitled to fees in the amount of $11, 800.00.
Gambrell filed an application for Disability Insurance
Benefits and Supplemental Security Income on May 2, 2012. Pl.
Br.  at 1. After her application was denied initially and
again on reconsideration, an ALJ found her not disabled and
not entitled to benefits. Pl. Brief  at 2. Ms. Gambrell
filed a Complaint in this Court, seeking review of the
Commissioner's final decision and arguing the ALJ erred
in four ways. Compl. ; Pl. Br. . After oral argument,
I remanded this case to the Commissioner for further
administrative proceedings. Mins. . I also awarded fees
in the amount of $8, 321.38 under the Equal Access to Justice
Act (EAJA), but the United States Treasury withheld the
entire EAJA fee in order to offset an outstanding child
support obligation. Order ; Mot. , Ex. C.
remand, an ALJ issued a fully favorable decision on October
27, 2017. Mot. , Ex. A. In a subsequent Notice of Award
issued November 27, 2017, the Social Security Administration
calculated Ms. Gambrell's total retroactive benefits to
be $48, 004.72. Motion , Ex. B. Ms. Gambrell now seeks
attorney fees in the amount of $11, 800.00 under 42 U.S.C.
§ 406(b). Ms. Gambrell is the claimant in the case, but
the real party in interest to this motion is her attorney,
George J. Wall. The Commissioner does not oppose this
Social Security claimant is successful, the court may award
her attorney reasonable attorney fees that do not exceed
twenty-five percent of the claimant's total retroactive
benefits. 42 U.S.C. § 406(b)(1)(A). Under the Supreme
Court's decision in Gisbrecht v. Barnhart, 535
U.S. 789 (2002), “the court first examines the
contingency fee agreement to determine whether it is within
the statutory twenty-five percent cap” and then
confirms that the fee sought by counsel does not exceed
§ 406(b)'s twenty-five percent cap. McGraw v.
Astrue, No. 3:10-cv-00308-HA, 2013 WL 1296077, at *1 (D.
Or. Mar. 20, 2013). Here, Ms. Gambrell's retainer
agreement with Mr. Wall provided that counsel's fees
would be twenty-five percent of past due benefits, if the
case proceeded past the level of the Appeals Council. Mot.
, Ex. D. Additionally, Mr. Wall seeks a fee of $11, 800,
which is 24.6% of Ms. Gambrell's past due benefits of
$48, 004.72. Both the agreement and the requested fee are
within statutory limits.
must determine whether the fee is reasonable under
Gisbrecht. Four factors determine reasonableness: 1)
the quality of representation; 2) the results the attorney
achieved; 3) any delay attributable to the attorney; and 4)
whether benefits obtained were “in proportion to the
time spent on the case.” Crawford v. Astrue,
586 F.3d 1142, 1151 (9th Cir. 2009) (citing
Gisbrecht, 535 U.S. at 808).
each of these factors supports a finding that the fees
requested are reasonable. First, there is no evidence in the
record that the quality of Mr. Wall's representation was
substandard, and the Court remanded for further consideration
of each of his four arguments. Second, he achieved favorable
results for his clients: the Court ordered a remand, and the
ALJ awarded Ms. Gambrell a fully favorable decision. Third,
there is no delay attributable to Mr. Wall. He did not seek
or receive any extensions of time. Fourth, Mr. Wall asserts
he spent 44.2 hours on this case, for an effective hourly
rate of $266.97. Mot.  at 2-3. Mr. Wall submitted a
nineteen-page opening brief, an eight-page reply brief, and
participated in oral argument. He succeeded on each of his
arguments and obtained the requested relief for his client.
Although I consider 44.2 hours to be on the high end of
reasonableness for a relatively routine Social Security case,
an hourly rate of $266.97 is substantially less than other
rates found reasonable by this Court for Mr. Wall's
services. See, e.g., Westphal v. Berryhill,
No. 3:15-cv-1904-AC, 2017 WL 3431440, at *4 (D. Or. July 14,
2017), report and recommendation adopted, No.
3:15-cv-01904-AC, 2017 WL 3429391 (D. Or. Aug. 8, 2017)
(effective hourly rate of $452.50); Bradshaw v.
Berryhill, No. 3:14-CV-01829-JO, 2017 WL 2821941 (D. Or.
June 28, 2017) (effective hourly rate of $645.67); Skoch
v. Comm'r Soc. Sec. Admin., No. 3:14-cv-00725-MA,
2017 WL 1437099 (D. Or. Apr. 20, 2017) (effective hourly rate
of $756.40). Given these factors, I conclude the requested
fee of $11, 800.00 is reasonable.
I must determine whether Mr. Wall must refund Ms. Gambrell in
the amount of the previously awarded EAJA fees. “[I]n
order to maximize the award of past-due benefits to claimants
and to avoid giving double compensation to attorneys, the
savings provision [of the EAJA] requires a lawyer to offset
any fees received under § 406(b) with any award that the
attorney receives under § 2412 if the two were for the
‘same work.'” Parrish v. Comm'r of
Soc. Sec. Admin., 698 F.3d 1215, 1218 (9th Cir. 2012);
see Gisbrecht, 535 U.S. at 796 (“Fee awards
may be made under both prescriptions, but the claimant's
attorney must refun[d] to the claimant the amount of the
smaller fee.”) (alteration in original) (citations
Wall is not required to refund Ms. Gambrell in these
circumstances. Instead, he is entitled to the entire fee
under § 406(b) because the Treasury withheld the fee
award under the EAJA to offset Ms. Gambrell's child
support obligations. See Fleenor v. Colvin, No.
3:11-cv-01326-MA, 2013 WL 5561212, at *2 (D. Or. Oct. 8,
2013) (declining to offset § 406(b) attorney fee by EAJA
fee, where “the entire $8, 500.00 fee previously
awarded under EAJA has been withheld by the United States
Treasury in order to offset an outstanding child support
reasons stated above, I GRANT the Motion  and conclude
Mr. Wall is entitled to fees under § ...