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Michael M. v. Commissioner, Social Security Administration

United States District Court, D. Oregon, Eugene Division

August 28, 2018

MICHAEL M., Plaintiff,
COMMISSIONER, Social Security Administration, Defendant.



         Before the Court is plaintiff Michael M.'s[1] 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, 457.00.


         Plaintiff 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.

         Plaintiff 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).

         On 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.

         On July 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).


         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). 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.


         The 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 . . . .”).

         I. Fee Agreement

         Under 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 limits.

         The 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 ...

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