United States District Court, D. Oregon, Eugene Division
TERESA M. W., Plaintiff,
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.
ORDER ON ATTORNEY FEES
V. ACOSTA United States Magistrate Judge.
the court is Plaintiff Teresa M. W.'s Unopposed Motion
and Memorandum for Attorney fees pursuant to 42 U.S.C. §
406(b). Although Plaintiffs the claimant in this case, the
real party in interest to this motion is her attorney,
Katherine Eitenmiller ("Eitenmiller"), of Harder
Wells Baron & Manning, P.C, ("Harder Wells").
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 fees sought, the court concludes that Harder
Wells is entitled to fees under Section 406(b) in the amount
of $ 11, 703.03
protectively filed her application for a period of disability
and disability insurance benefits on November 2, 2011.
Plaintiff also protectively filed an application for
supplemental security income on November 2, 2011. In both
applications, Plaintiff alleged disability beginning October
16, 2011. The claims were denied initially and on
reconsideration. On June 24, 2014, the ALJ issued an
unfavorable decision finding that Plaintiff was not disabled
under the Act. The Appeals Council denied Plaintiffs request
December 9, 2015, Plaintiff filed a Complaint in this court
seeking review of the Commissioner's final decision. On
November 28, 2016, the court granted the parties'
stipulated motion for remand, requiring further
administrative proceedings. On remand, Plaintiff was awarded
retroactive benefits in the amount of $46, 812.10, finding
Plaintiff disabled as of April 2012.
previously filed a Stipulated Motion for Attorney Fees Under
28 U.S.C. § 2412(d) in the amount of $5, 362.06, which
the court granted on February 23, 2017. Additionally,
Eitenmiller represents that Plaintiffs representative
previously has received an administrative fee of $5, 907.00.
On December 12, 2018, 2018, Plaintiff filed the instant
petition for attorney fees under Section 406(b) in the amount
of $ 11, 703.03, less the amounts previously received by
Plaintiffs counsel. The Commissioner does not oppose the
entering a judgment in favor of a Social Security claimant
who was represented by counsel, a court "may determine
and allow as part of its judgment a reasonable fee for such
representation, not in excess of twenty-five 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), An award of fees under § 406(b) is paid
from claimant's past due benefits, and an attorney
receiving such an award may not seek any other compensation
from the claimant. Gisbrecht v. Barnhart, 535 U.S.
789, 796-807 (2002). Accordingly, when a court approves both
an EAJA fee and a § 406(b) fee payment, the
claimant's attorney must refund to the claimant the
amount of the smaller of the two payments. Id.
Gisbrecht, the court must first examine the
contingency fee agreement to determine whether it is within
the statutory 25 percent cap. Id. at 800. The court
also must '"review for reasonableness fees yielded
by [contingency fee] agreements." Crawford v.
Astrue, 586F.3d 1142, 1152 (9th Cir. 2009) (en
banc) (quoting Gisbrecht, 535 U.S. at 808)). As
set forth in Crawford, the court must apply the
following factors: (1) the character of the representation,
(2) the results achieved, (3) any delay attributable to the
attorney requesting the fee, (4) whether the benefits of the
representation were out of proportion with the time spent on
the case, and (5) the risk assumed by counsel in accepting
the case. Id. at 1151-52.
the terms of the contingent-fee agreement between Plaintiff
and Harder Wells are within the statutory limits of §
406(b). The $11, 703.03 in attorney fees Eitenmiller seeks
does not exceed 25 percent of the past due benefits awarded
to Plaintiff. See Mot. Att'y Fees at 1 & Ex.
A at 2, ECF No. 27.
court has reviewed the record in the case, the motion, and
the supporting materials including the award of benefits, the
fee agreement with counsel, and the recitation of
counsel's hours and services. Applying the standards set
by Crawford, the court finds the requested fees
reasonable. There is no indication that Eitenmiller was
either ineffective or dilatory, and she achieved a favorable
result for Plaintiff. Furthermore, the amount of fees
requested is not out of proportion to the work performed by
Eitenmiller, and the benefits are not so large in comparison
to the amount of time counsel spent that a reduction of the
fees requested is justified. In short, after applying the
Gisbrecht factors, as interpreted by
Crawford, the court finds that Plaintiffs counsel
has demonstrated that a 25 percent fee is reasonable for this
these reasons, Plaintiffs Unopposed Motion for Attorney Fees
Pursuant to 42 U.S.C. § 406(b) (ECF No. 27) is GRANTED
and Harder Wells is awarded $11, 703.03 in attorney fees. In
light of the $5, 362.06 in EAJA fees previously awarded, and
the $5, 907.00 in administrative fees awarded to Plaintiffs
representative, the Commissioner is directed to send the send
the balance of $433.97, less any applicable processing or
user fees as allowed by statute to Plaintiffs attorneys at
Harder Wells Barron & Manning, P.C., 474 Willamette