United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
V. ACOSTA UNITED STATES MAGISTRATE JUDGE
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.
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.
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
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.
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.
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.
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.”).
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 ...