United States District Court, D. Oregon, Medford Division
OPINION AND ORDER
PATRICIA SULLIVAN UNITED STATES MAGISTRATE JUDGE
the Court is plaintiff William S.'s 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,
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.
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).
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.
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).
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
25% of the past-due benefits awarded. (Docket No. 24-1). 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. 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 ...