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Rose M. v. Commissioner Social Security Administration

United States District Court, D. Oregon, Portland Division

July 24, 2018

ROSE M., [1]Plaintiff,




         Before the court is an unopposed Motion and Memorandum for Approval of Attorney Fees Pursuant to 42 U.S.C. § 406(b) (“Section 406(b)”) filed by plaintiff Rose M. (“Plaintiff”). Though Plaintiff is the claimant in this case, the real party in interest to this motion is her attorney, Merrill Schneider (“Schneider”) of the law firm Schneider Kerr & Robichaux. The Commissioner does not oppose the motion, but merely acts in a manner 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 the fees sought, the court concludes Schneider is entitled to fees under Section 406(b) in the amount of $6, 658.

         Procedural Background

         Plaintiff filed her applications for disability and disability insurance benefits on September 7, 2011, and for supplemental security income benefits on February 1, 2012, initially alleging an onset date of May 1, 2003, then amending that date to August 17, 2011. Her applications were denied initially and on reconsideration. On October 15, 2013, an Administrative Law Judge (“ALJ”) issued an opinion finding that Plaintiff was not disabled as of the amended onset date and, therefore, not entitled to benefits. The ALJ found Plaintiff: (1) suffered from severe impairments of chronic obstructive pulmonary disease, a history of posttraumatic stress disorder, anxiety, bipolar disorder with depression, personality disorder, and degenerative disc disease, but that those impairments did not meet or medically equal the severity of the listed impairments; (2) retained the residual functional capacity to perform limited, simple, repetitive, routine tasks requiring little interaction with the general public; (3) was unable to perform her past relevant work; and (4) was able to perform jobs such as hand packager, warehouse worker, and officer helper. That decision became the final decision of the Commissioner on July 17, 2015, when the Appeals Council denied Plaintiff's appeal.

         Plaintiff sought review of the Commissioner's decision by filing a complaint in this court on September 11, 2015. Plaintiff alleged the ALJ erred by failing to include the one-to-two-step task limitation found by disability determination services in her residual functional capacity determination.

         On June 3, 2016, the parties filed a Stipulated Motion for Remand. The same day, the court entered an Order of Remand (the “Order”) directing the ALJ to reevaluate the medical evidence and reassess Plaintiff's residual functional capacity. On April 16, 2018, the ALJ issued a fully favorable decision finding Plaintiff disabled, and she was awarded $46, 992 in back benefit awards.

         Plaintiff previously filed a Stipulated Motion for Attorney Fees Pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412 (“EAJA”), in the amount of $1, 742.34, which the court granted on September 6, 2016. On June 27, 2018, Plaintiff filed the instant petition for attorney fees under 42 U.S.C. § 406(b) in the amount of $6, 658. The Commissioner does not oppose the motion.

         Legal Standard

         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) (2018). 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 *7 (D. Or. Dec. 23, 2009), adopted 2010 WL 1029809 (Mar. 17, 2010) (quoting Gisbrecht, 535 U.S. at 807 n.17). 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. Id. 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. Gisbrecht, 535 U.S. at 796.


         The parties do not dispute that Plaintiff is the prevailing party in this matter. Additionally, the Commissioner does not challenge the amount Schneider Kerr & Robichaux requests as attorney fees. Nevertheless, because the Commissioner does not have a direct stake in the allocation of Plaintiff's attorney fees, the court must ensure the calculation of fees is reasonable to prevent Schneider Kerr & Robichaux from receiving a potential windfall. See Gisbrecht, 535 U.S. at 798 n. 6 (“We also note that the Commissioner of Social Security . . . has no direct financial stake in the answer to the § 406(b) question.”).

         I. Fee Agreement

         Under the Supreme Court's decision in Gisbrecht, the court first examines the contingent fee agreement to determine whether it is within the statutory twenty-five percent cap. Plaintiff and Schneider Kerr & Robichaux executed a retainer agreement, which provided: “I will pay a fee of the lesser of 25% of any past due benefits or the applicable maximum amount . . . [which] is currently $6, 000” if she were awarded benefits. (Pl.'s Mot. for Attorney Fees Pursuant to ...

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