United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE.
the Court is plaintiff Michael M.'s Motion for
Approval of Attorney Fees Pursuant to 42 U.S.C. §
406(b). (Docket No. 25). The Commissioner of Social Security
(the “Commissioner”) does not object. The Court
has reviewed the proceedings and the amount of fees sought,
and GRANTS plaintiff's Motion. The Court awards fees of
$18, 893.91, less the already-awarded Equal Access to Justice
Act fees of $4, 436.91 (Docket No. 24), for a net of $14,
applied for Disability Insurance Benefits on April 4, 2012,
alleging disability beginning October 15, 2010. Tr. 183-91.
His application was denied initially and on reconsideration.
Tr. 101-34. On October 21, 2014, an Administrative Law Judge
(“ALJ”) issued a decision finding plaintiff not
disabled. Tr. 23-39. The Appeals Council denied review of the
ALJ's decision on February 26, 2012. Tr. 1-6.
sought review of the Commissioner's decision by filing a
Complaint in this Court on May 2, 2016. (Docket No. 1).
Plaintiff argued that the ALJ committed two errors: (1) the
testimony of the Vocational Expert was not consistent with
the Dictionary of Occupational Titles; (2) the ALJ
did not give clear and convincing reasons for rejecting
plaintiff's testimony. (Docket No. 17). The Commissioner
conceded that the ALJ erred, and stipulated to remand for
further administrative proceedings. (Docket No. 18). The
Court entered judgment reversing and remanding on March 15,
2017. (Docket Nos. 19, 20).
April 5, 2017, the Court granted plaintiff's Stipulated
Application for Fees Pursuant to EAJA (the Equal Access to
Justice Act, 28 U.S.C. § 2412(d)). (Docket Nos. 21-24).
The Court awarded $4, 436.91 in EAJA attorney fees and
$400.00 in filing fees. Id.
25, 2016, the Social Security Administration
(“Administration”) issued a notice of award
entitling plaintiff to benefits beginning November 2012.
(Docket 25-5). The Administration determined past-due
benefits of $81, 828. Id. Plaintiff received the
notice on August 1, 2018. Id., at 1. On August 14,
2018, plaintiff filed this Motion, which is timely under L.R.
4000-8. (Docket No. 25).
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). 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 *6 (D. Or. Dec. 23, 2009)
(quoting Gisbrecht v. Barnhart, 535 U.S. 789, at 807
n.17 (2002)), adopted 2010 WL 1029809 (D. Or. Mar.
17, 2010). A § 406(b) fees 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., at *6. When a court approves
both an EAJA fees award and a § 406(b) fees payment, the
claimant's attorney must refund to the claimant the
lesser of the two. Gisbrecht, 535 U.S. at 796.
parties do not dispute that plaintiff is the prevailing
party. The Commissioner does not challenge the fees
requested. Nonetheless, because the Commissioner does not
have a direct stake in the allocation of attorney fees, the
Court must ensure that fees are reasonable. See
Gisbrecht, 535 U.S. at 798 n.6 (“[T]he
Commissioner of Social Security . . . has no direct financial
stake in the answer to the § 406(b) question . . .
Gisbrecht, the Court first examines the contingent
fee agreement to ensure it is within the statutory 25% limit.
535 U.S. at 808. Plaintiff and his attorney executed a
contingent-fee agreement, which provided that if his attorney
obtained payment of past-due benefits, plaintiff would pay up
to 25% of the past-due benefits awarded. (Docket No. 25-3).
The terms of this agreement are thus within the statute's
next step is to confirm that the fees requested do not exceed
the statute's 25% ceiling. This requires evidence of the
retroactive benefits to be paid. Plaintiff has provided a
notice of award from the Administration, detailing the
retroactive benefits due. (Docket No. 25-5). Plaintiff's
attorney seeks fees of approximately 23% of the amount of
retroactive benefits. This complies with plaintiff's
agreement. After determining that the fee agreement and
amount requested are within the statutory ...