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William S. v. Commissioner Social Security Administration

United States District Court, D. Oregon, Medford Division

August 29, 2018

WILLIAM S., Plaintiff,
COMMISSIONER, Social Security Administration, Defendant.



         Before the Court is plaintiff William S.'s[1] Motion for Approval of Attorney Fees Pursuant to 42 U.S.C. § 406(b). (Docket No. 24). 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 $7, 686.75, less the already-awarded Equal Access to Justice Act fees of $4, 699.92 (Docket No. 23), for a net of $2, 986.83.


         Plaintiff applied for Supplemental Security Income and Disability Insurance Benefits on September 16, 2011, alleging disability beginning June 30, 2005. Tr. 203-16. His application was denied initially and on reconsideration. Tr. 67-122, 130-36. On July 29, 2013, an Administrative Law Judge (“ALJ”) issued a decision finding plaintiff not disabled. Tr. 19-33. The Appeals Council denied review of the ALJ's decision on March 24, 2015. 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 four errors: (1) improperly rejecting treating physician opinion; (2) improperly rejecting plaintiff's testimony; (3) improperly discounting third-party witness testimony; and (4) improperly finding, at step five of the five-step analysis, that plaintiff could perform another occupation. (Docket No. 15). The Commissioner conceded that the ALJ erred, and stipulated to remand for further administrative proceedings. (Docket No. 16). The Court entered judgment reversing and remanding on January 25, 2016. (Docket Nos. 17-19).

         On May 4, 2016, 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. 20-23). The Court awarded $4, 699.92 in EAJA attorney fees. Id.

         On May 12, 2017, the Social Security Administration (“Administration”) issued a notice of award entitling plaintiff to benefits beginning October 2011. (Docket 24-1). The Administration determined past-due benefits of $30, 747.00. Id. Plaintiff filed this Motion on August 23, 2018, within 60 days of receipt of the Administration's notice; the Motion is thus timely under L.R. 4000-8. (Docket No. 24).[2]


         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 25% of the past-due benefits awarded. (Docket No. 24-1). 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. 24-1). Plaintiff's attorney seeks fees of 25% of the amount of retroactive benefits. This complies with plaintiff's agreement. After determining that the fee agreement and amount requested are within the ...

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