United States District Court, D. Oregon, Medford Division
DANA L. MERRITT, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
D. Clarke United States Magistrate Judge
case comes before the Court on an unopposed motion (#31) for
attorney fees under 42 U.S.C. § 406(b) in the amount of
$21, 700.53, with the actual payment request of $11, 232, the
amount left after subtracting the $4, 559.20 in EAJA fees and
$5, 909 for work at the administrative level that have
already been paid to the plaintiffs attorney. Having reviewed
the proceedings and the amount of fees sought, the Court
concludes that the plaintiffs attorney is entitled to the
fees requested. The motion (#31) is GRANTED.
February 10, 2016, the plaintiff filed her claim to obtain
judicial review of a final decision of the Commissioner,
which denied her application for Title XVI supplemental
security income disability benefits under the Social Security
Act. On October 12, 2017, this Court remanded (#25)
Merritt's case for an immediate payment of benefits. On
January 8, 2018, this Court granted a stipulated application
for the plaintiffs attorney fees pursuant to EAJA in the
amount of $4, 559.20 (#29); the fees were assigned and made
payable to the plaintiffs counsel. On March 14, 2018, the
plaintiffs attorney filed this motion for attorney fees under
42 U.S.C. § 406(b). The Commissioner does not oppose
42 U.S.C. § 406(b), a court entering judgment in favor
of an SSDI claimant who was represented by an attorney
"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."
Crawford v. Astrue, 586 F.3d 1142. 1147 (9th Cir.
2009). In contrast to fees awarded under fee-shifting
provisions such as 42 U.S.C. § 1988, the fee is paid by
the claimant out of the past-due benefits awarded; the losing
party is not responsible for payment. Gisbrecht v.
Barnhart, 535 U.S. 789, 802 (2002). Also, in contrast to
fees awarded under fee-shifting statutes, under which
"nothing prevents the attorney for the prevailing party
from gaining additional fees, pursuant to contract, from his
own client, " Id. at 806, the court-awarded fee
is the only way a successful SSDI attorney may recover fees
for work performed before the district court.
Crawford. 586 F.3d at 1147. In fact, it is a
criminal offense for an attorney to collect fees in excess of
those allowed by the court. Id.; 42 U.S.C. §
406(b)(2): see also Gisbrecht, 535 U.S. at 806-07.
Thus, when a court approves both an EAJA fee and a section
406(b) fee payment, the claimant's attorney must offset
any fees the attorney receives under Section 406(b) with any
award the attorney received under EAJA "if the two were
for the 'same work.'" Parrish v.
Commissioner of Social Sec. Admin., 698 F.3d 1215, 1218
(9th Cir. 2012) (citing Gisbrecht, 535 U.S. at 796).
the Supreme Court's decision in Gisbrecht, the
court first examines the contingency fee agreement to
determine whether it is within the statutory 25% cap. In this
case, the plaintiffs counsel submitted the attorney-client
contingent-fee agreement (#31-C); the agreement shows federal
court appearance, followed by a favorable outcome, will
result in a fee of either "such amount that my attorney
is able to obtain under the Equal Access to Justice Act
(EAJA) or up to 25% of my past due benefits as determined by
my attorney pursuant to 42 U.S.C. Section
406(b)." Thus, the terms of the agreement are
within the statute's limits.
next step is to confirm that counsel's fee request does
not exceed the statute's 25% ceiling. This determination
requires evidence of the retroactive benefits to be paid to
the claimant. Counsel has included the "Notice of Award,
" from the Society Security Administration (#31-A),
which states the total retroactive benefits due to the
plaintiff to be in the amount of $88, 231.00. Plaintiffs
attorney notes however, that this amount includes past due
benefits through October 2017 when it should only be
calculated through September 2017. Therefore, in determining
whether counsel's fee request does not exceed the 25%
ceiling, the correct total for retroactive benefits is $86,
802.10. Twenty-five percent of $86, 802.10 is $21, 700.53 -
the exact amount requested. Therefore, the fee demand
complies with the maximum fee allowed by statute.
order for an award of benefits cannot be presumed to require
a fee award of 25% of a claimant's retroactive benefits
award, however, nor should the order for an award be viewed
in isolation. Newton v. Colvin. 2013 WL 3119564 (D.
Or. June 18, 2013). Counsel bears the burden to establish the
reasonableness of the requested fee. Gisbrecht. 535
U.S. at 807. While the court must acknowledge the
"primacy of lawful attorney-client fee agreements,
" contingent fee agreements that fail to "yield
reasonable results in particular cases" may be rejected.
Id. at 793, 807. The court must ensure a disabled
claimant is protected from surrendering retroactive
disability benefits in a disproportionate payment to counsel.
Crawford, 586 F.3d at 1151 (citing
Gisbrecht, 535 U.S. at 808). The four factors to be
considered when evaluating the requested fee's
reasonableness have been identified by the Ninth Circuit as
derived from the Supreme Court's analysis in
1. the character of the representation, specifically, whether
the representation was substandard;
2. the results the representative achieved;
3. any delay attributable to the attorney seeking the fee;
4. whether the benefits obtained were "not in proportion
to the time spent on the case" and raise the specter
that the attorney would receive an unwarranted windfall.
Crawford, 586 F.3d at 1151-53 (citations omitted).
The Ninth Circuit, in Crawford, also identified the
risk inherent in contingency representation as an appropriate
factor to consider in determining a section 406(b) award. It
focused the risk inquiry, however, stating that: "the
district court should look at the complexity and risk
involved in the specific case at issue to determine ...