Atkinson v. Commissioner Social Security Administration
OPINION and ORDER - For the reasons stated, Atkinson's amended motion 31 regarding fees is GRANTED in the amount of $18,300.00. IT IS SO ORDERED. DATED this 11th day of August, 2017, by United States Magistrate Judge John V. Acosta. (peg)
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EVE CHRISTINE ATKINSON,
Civil No. 1: 14-cv-O 1268-AC
NANCY A. BERRYHILL, acting
Commissioner of Social Security
ACOSTA, Magistrate Judge:
Before the court is Eve Christine Atkinson's ("Atkinson") unopposed Motion for Approval
of Attorney Fees Pursuant to 42 U.S.C. § 406(b). Although Atkinson is the claimant in this case,
PAGE 1- OPINION AND ORDER
the real party in interest to this motion is her attorney Marlene R. Yesquen ("Yesquen"), and 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 Y esquen is entitled to fees under section
406(b) in the amount of$18,300.
Atkinson filed her application for Disability Insurance Benefits and Supplemental Security
Income Benefits ("Benefits") on September 20, 2010, and October 15, 2010, respectively, alleging
an onset date of August 23, 2010. Her application was denied initially and on reconsideration. On
October 11, 2012, an Administrative Law Judge ("ALJ") issued an opinion in which she found
Atkinson not disabled and, therefore, not entitled to Benefits. That decision became the final
decision ofthe Commissioner on June 2, 2014, when the Appeals Council denied Atkinson's request
Atkinson sought review of the Commissioner's decision by filing a complaint in this court
on March 13, 2015. Atkinson alleged the ALJ erred in five respects: (1) rejecting the opinions and
conclusions of Atkinson's physician, Dr. Kelllog, and other medical providers without clear or
convincing reasons; (2) substituting her own opinion for that of Atkinson's doctor, and making
independent medical findings, and speculative inferences based on medical evidence; (3) not
properly considering the combined effect of Atkinson's multiple impairments; (4) rejecting
Plaintiffs pain and other subjective testimony without clear and convincing reasons; and (5) basing
her decision on the opinion of the vocational expert, based on an incomplete hypothetical, which did
not accurately reflect Atkinson's condition, rather than the expert's answers concerning Atkinson's
PAGE 2 - OPINION AND ORDER
actual condition. Additionally, Atkinson asserted the Appeals Council improperly rejected medical
evidence submitted as new, and material evidence related to the medical conditions considered by
the ALJ in her decision of October 11, 2012. On September 9, 2015, this court issued an Opinion
and Order, accepting Atkinson's arguments and remanding the Commissioner's decision denying
Atkinson's applications (the "Opinion"). (ECF No. 25.) Benefits were awarded in the amount of
The parties do not dispute Atkinson is the prevailing party in this matter. Additionally, the
Commissioner does not challenge the amount Yesquen requests as attorney fees. Nonetheless,
because the Commissioner does not have a direct stake in the allocation of Atkinson's attorney fees,
the court must ensure the calculation of fees is reasonable to prevent Yesquen from potentially
receiving a windfall. See Gisbrecht, 535 U.S. at 798 n.6 ("We also note that the Commissioner of
Social Security ... has no direct financial stake in the answer to the § 406(b) question.").
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 of25 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)(l)(A)(2015). 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, *7 (D. Or.
Dec. 23, 2009), adopted20l0 WL 1029809 (March 17, 2010)(quoting Gisbrecht, 535 U.S. at 807
II II I
II II I
PAGE 3 - OPINION AND ORDER
n.17). A section 406(b) fee 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. Dunnigan, 2009
WL 6067058, at *7.
I. Fee Agreement
Under the Supreme Court's decision in Gisbrecht, the court first examines the contingent fee
agreement to determine whether it is within the statutory twenty-five percent cap. Atkinson and
Yesquen executed a contingent-fee agreement, which provided that ifYesquen obtained payment
of past-due benefits, Atkinson would pay her twenty-five percent of the past-due benefits awarded.
(Pl.'s Am. Mot. for Attorney Fees (ECF No. 3 l)("Pl.'s Mot.") at 2.) The terms of this agreement
are thus within the statute's limits.
The next step is to confirm that the fee requested by counsel does not exceed the statute's
twenty-five percent ceiling. This determination requires evidence of the retroactive benefits to be
paid to Atkinson. Yesquen provided a document from the Society Security Administration (the
"Administration") entitled "Notice of Award," which details the retroactive benefits due Atkinson
and states it has withheld $30,751.50 in reserve to pay any attorney fees awarded by the court, which
may not exceed twenty-five percent past due benefits. (Pl.'s Mot. Ex. A at 3.) Yesquen seeks
$18,300.00, less than the amount withheld, asserting Atkinson's retroactive benefits equaled
approximately $123,006.00, an amount consistent with the sum withheld by the Administration for
attorney fees. After determining the fee agreement and the amount requested are in accordance with
the statutory limits, this court next turns to "its primary inquiry, the reasonableness of the fee
sought." Dunnigan, 2009 WL 6067058, at *10.
I II II
PAGE 4 - OPINION AND ORDER
IL Reasonableness Factors
An order for an award of benefits should not be viewed in isolation, nor can it be presumed
always to require a fee award of twenty-five percent of a claimant's retroactive benefits award.
Dunnigan, 2009 WL 6067058, at *12. If obtaining benefits always supported awarding fees for the
maximum amount provided for by statue, the other Gisbrecht factors and the trial courts' assigned
task of '"making reasonableness determinations in a wide variety of contexts"' would be
unnecessary. Id. (quoting Gisbrecht, 535 U.S. at 808). Here, Yesquen seeks less than twenty-five
percent of the past due benefits, less than the statutory cap.
Counsel bears the burden to establish the reasonableness ofthe requested fee. Gisbrecht, 535
U.S. at 807.
While the court must acknowledge the "primacy of lawful attorney-client fee
agreements," contingent fee agreements that fail to "yield reasonable results in particular cases" may
Id. at 793, 807. The court must ensure a disabled claimant is protected from
surrendering retroactive disability benefits in a disproportionate payment to counsel. Crawford v.
Astrue, 586 F.3d 1142, 1151 (9th Cir. 2009) (en bane) (citing Gisbrecht, 535 U.S. at 808). The four
factors to be considered when evaluating the requested fee's reasonableness have been identified by
the Ninth Circuit from the Gisbrecht analysis as: (1) the character of the representation, specifically,
whether the representation was substandard; (2) the results the attorney achieved; (3) any delay
attributable to the attorney seeking the fee; and (4) whether the benefits obtained were "not in
proportion to the time spent on the case" and raise the specter that the attorney would receive an
unwarranted windfall. Crawford, 586 F.3d at 1151-53 (citations omitted). The Ninth Circuit, in
Crawford, also identified the risk inherent in contingency representation as an appropriate factor to
consider in determining a section 406(b) award. It focused the risk inquiry, however, stating that:
PAGE 5 - OPINION AND ORDER
"the district court should look at the complexity and risk involved in the specific case at issue to
determine how much risk the firm assumed in taking the case." 586 F.3d at 1153.
A. The Character ofRepresentation
Substandard performance by a legal representative may warrant a reduction in a section
406(b) fee award. Crawford, 586 F.3d at 1151. The record in this case, however, provides no basis
for a reduction in the requested section 406(b) fee due to the character ofYesquen's representation.
In fact, in Defendant's response to Atkinson's brief, the Commissioner agreed with Yesquen's
arguments and conceded the case should be remanded because the ALJ' s decision was not supported
by substantial evidence. Yesquen prevailed on her arguments, successfully argued for the remand
of her client's case, and ultimately Atkinson was awarded benefits.
B. Results Achieved
The court ordered a remand of Atkinson's claim for further proceedings and ultimately
benefits were awarded. This was the best result available in that the ALJ who initially decided the
matter on the issue was entitled to consider the evidence and resolve ambiguities in the first instance
C. Undue Delays
A court may reduce a section 406(b) award for delays in proceedings attributable to
claimant's counsel. Crawford, 586 F.3d at 1151. The reduction is appropriate "so that the attorney
will not profit from the accumulation of benefits during the pend ency of the case in court."
Gisbrecht, 535 U.S. at 808 (citation omitted).
Here, the court granted Atkinson an unopposed extension of thirty days, due to a scheduling
error in Yesquen's office, and Atkinson's opening brief was filed on March 13, 2015. The
PAGE 6 - OPINION AND ORDER
Commissioner filed the response brief timely on May 15, 2015. The court granted Yesquen's
unopposed motion to extend the reply brief deadline by two weeks, because Yesquen had other briefs
due and attorney vacation. Atkinson filed her reply brief on June 12, 2015.
The pendency of this action exceeded the normal time span due to Yesquen' s filing motions
to extend deadlines. Y esquen' s requests for extensions of time extended the action by one and onehalf months. However, the one and one-half month delay was not disproportionally long in relation
to the overall pendency of the action and was not umeasonable or unfounded. There is nothing in
the record to suggest the delay attributable to Yesquen was "undue." Accordingly, a reduction of
Yesquen's fee request is unwarranted under this factor.
Finally, a district court may reduce a section 406(b) award if "benefits ... are not in
proportion to the time spent on the case." Crawford, 586 F.3d at 1151 (citing Gisbrecht, 535 U.S.
at 808). The Supreme Court explained "[i]f the benefits are large in comparison to the amount of
time counsel spent on the case, a downward adjustment is ... in order." Gisbrecht, 535 U.S. at 808.
In this case, Yesquen filed an thirty-five-page opening brief asserting five errors by the ALJ,
and one error by the Appeals Council, and a nineteen-page reply brief bolstering her arguments in
response to the Commissioner's opposition brief. Yesquen argued the matter should be remanded
to the Commissioner for an immediate award of Benefits or, in the alternative, for further
proceedings requesting new evidence be admitted.
Yesquen' s thirty-five-page brief concentrated primarily on the ALJ' s lack of substantial
evidence in discrediting Atkinson's testimony, and discrediting that of Atkinson's treating
physicians. This court entered the order and opinion finding the ALJ' s decision was based on
PAGE 7 - OPINION AND ORDER
improper legal standards. Yesquen prevailed on her arguments and this court remanded the matter
for further proceedings, which resulted in an award ofbenefits. Atkinson's extensive medical history
and the knowledge and skill needed to analyze and argue making this case one of more than usual
Based on the amount withheld by the Administration for attorney fees, Atkinson is entitled
to $123,006.00 in retroactive benefits. Yesquenreports, and the time records confirm, she expended
slightly more than thirty-six hours representing Atkinson in this matter. This time expenditure falls
within the twenty- to forty-hour range Judge Mosman found to be a "reasonable amount of time to
spend on a social security case that does not present particular difficulty." Harden v. Comm 'r, 497
F. Supp. 2d 1214, 1215 (D. Or. 2007).
Yesquen currently seeks $18,300.00 in attorney fees for her representation ofAtkinson before
this court, which results in an effectively hourly rate of $500.00. This hourly rate is justified by the
results Yesquen achieved, and is consistent with those found reasonable for Yesquen' s services by
other judges in this district. See Loew v. Colvin, No. 6:13-cv-0446-SI, 2015 WL 5522047 (Sept. 26,
2015) (effective hourly rate of $498.84); Seamon v. Colvin, No. 03:10-cv-06421-HU, 2014 WL
51124 (D. Or. Jan. 5, 2014) (effective hourly rate of $545); Atwood v. Colvin, Civil No. 09-6207HA, 2011 WL 6372790(Dec. 19, 2011) (effective hourly rate of$716.50); Carver v. Astrue, Civil
No. 08-6099-MO, 2010 WL 3950728 (Oct. 6, 2010) (effective hourly rate of$824.07).
Yesquen briefly references the substantial risk of nonpayment and the significant delay in
payment undertaken by Social Security practitioners. She then describes the risks unique to this
case, emphasizing how arguing for the credibility of the medical testimony required a higher level
PAGE 8 - OPINION AND ORDER
of forensic analysis of the objective medical evidence.
The issues raised by Yesquen on Atkinson's behalf were fairly routine in Social Security
cases. However, the outcome of the case was far from assured, as evidenced by the denial of benefits
by the ALJ and the affirmation of that decision by the Appeals Council. The court finds no reduction
of the request fee is warranted based on the risk and complexity of the case.
For the reasons stated, Atkinson's Motion for Approval of Attorney Fees Pursuant 42 U.S.C.
§ 406(b) (ECF No. 34) in the amount of $18,300.00 is GRANTED.
IT IS SO ORDERED.
DATED this 11th day of August, 2017.
JOHN v. ACOSTA
UniteiJ/States Magistrate Judge
PAGE 9 - OPINION AND ORDER
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?