United States District Court, D. Oregon, Medford Division
LORI C. W., Plaintiff,
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.
ORDER ON ATTORNEY FEES
V. ACOSTA UNITED STATES MAGISTRATE JUDGE.
the court is Plaintiff Lori C. W.'s Unopposed Motion
and Memorandum for Attorney fees pursuant to 42 U.S.C. §
406(b). Although Plaintiff is the claimant in this case, the
real party in interest to this motion is her attorney, Alan
Stuart Graf ("Graf'). 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 Graf is entitled to fees under Section 406(b)
in the amount of $25, 450.00.
protectively filed her application for a period of disability
and disability insurance benefits on May 19, 2013. In her
application, Plaintiff alleged disability beginning March 15,
2011. The claims were denied initially and on
reconsideration. On November 30, 2015, the ALJ issued an
unfavorable decision finding that Plaintiff was not disabled
under the Act. The Appeals Council denied Plaintiffs request
February 24, 2017, Plaintiff filed a Complaint in this court
seeking review of the Commissioner's final decision. On
April 16, 2018, the court issued an Opinion and Order
reversing and remanding the ALJ's decision for further
administrative proceedings. On remand, Plaintiff was awarded
retroactive benefits, finding her disabled as of May 19,
2013. (Decl. Graf Ex. 5, ECF No. 35-5.).
22, 2018, Plaintiff was awarded attorney fees in the amount
of $5, 981.23 under the Equal Access to Justice Act
("EAJA"), 28 U.S.C. § 2412(d). (Order, ECF No.
34.) On February 19, 2019, Plaintiff filed the instant
petition for attorney fees under Section 406(b) in the amount
of $25, 450.00, less the amounts previously received by
Plaintiffs counsel under the EAJA. The Commissioner does not
oppose the motion.
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, 586 F.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 Graf are within the statutory limits of § 406(b).
The $25, 450.00 in attorney fees Graf seeks do not exceed 25
percent of the past due benefits awarded to
Plaintiff. (Mot. Supp. Att'y Fees at 1 & Ex.
5 at 3, ECF No. 35.) Thus, the terms of this agreement are
within the statute's limit.
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 Graf was either
ineffective or dilatory, and he achieved a favorable result
for Plaintiff. Furthermore, the amount of fees requested is
not out of proportion to the work performed by Graf, 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. Finally, Graf does not assert any risks unique to
this case, and the court identifies none. Graf does not seek
an adjustment to the requested fee based on risk factors and
the court concludes no such adjustment is warranted. 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 case.
these reasons, Plaintiffs Unopposed Motion for Attorney Fees
Pursuant to 42 U.S.C. § 406(b) (ECF No.35) is GRANTED
and Graf is awarded $25, 450.00 in attorney fees. In light of
the $5, 981.23 in EAJA fees previously awarded, the
Commissioner is directed to send the send the balance of $19,
468.77, less any applicable processing or user fees as