United States District Court, D. Oregon, Eugene Division
CARI L. V. Plaintiff,
COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant.
ORDER ON ATTORNEY FEES
V. ACOSTA UNITED STATES MAGISTRATE JUDGE
the court is Plaintiff Cari L. V.' 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,
Kathryn Tassinari ("Tassinari") 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 $$20,
protectively filed her application for disability insurance
benefits on July 19, 2011, alleging disability as of April 5,
2009. The claims were denied initially and on
reconsideration. An ALJ held hearings on February 20, 2014,
and July 21, 2014. On January 15, 2015, the ALJ issued an
unfavorable decision finding that Plaintiff was not disabled
under the Act. The Appeals Council denied Plaintiffs request
September 27, 2016, Plaintiff filed a Complaint in this court
seeking review of the Commissioner's final decision. On
October 11, 2017, the court granted the parties'
stipulated motion for remand for further administrative
proceedings. On remand, Plaintiff was awarded retroactive
benefits, finding her disabled as of July 2010. (Mot.
Att'y Fees Ex. A at 1, ECF No. 29-2.)
January 11, 2018, Plaintiff was awarded attorney fees in the
amount of $4, 154.62 under the Equal Access to Justice Act
("EAJA"), 28 U.S.C. § 2412(d). (Order, ECF No.
27.) On January 25, 2019, Plaintiff filed the instant
petition for attorney fees under § 406(b) in the amount
of $24, 406.50, 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 statutoiy 25 percent cap. Id. at 800. The court
also must '"review for reasonableness fees yielded
by [contingency fee] agreements.'" Crawfordv.
Astrne, 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 Harder Wells are within the statutory limits of §
406(b). The $20, 251.88 in attorney fees Harder Wells 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 Harder Wells was
either ineffective or dilatory, and they achieved a favorable
result for Plaintiff. Furthermore, the amount of fees
requested is not out of proportion to the work performed by
Harder Wells, 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, Harder Wells does not
assert any risks unique to this case, and the court
identifies none. Harder Wells 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
these reasons, Plaintiffs Motion for Attorney Fees Pursuant
to 42 U.S.C. § 406(b) (ECF No. 29) is GRANTED and Harder
Wells is awarded $24, 406.50 in attorney fees. In light of
the $4, 154.62 in EAJA fees previously awarded, the
Commissioner is directed to send the send the balance of $20,
251.88, less any applicable processing or user fees as