Whysong v. Commissioner Social Security Administration
ORDER: Order on Attorney Fees 23 . Signed on 2/12/2018 by Judge Malcolm F. Marsh. (ma2)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TIFF ANY A. WHYSONG,
Case No. 1:15-cv-00488-MA
ORDER ON ATTORNEY FEES
COMMISSIONER SOCIAL SECURITY
Plaintiff Tiffany A. Whysong brought this action seeking review of the Commissioner's
decision to deny her applications for disability insurance benefits and supplemental security income.
In a January 5, 2016 Order, I reversed the Commissioner's decision and remanded the case for
further administrative proceedings. Order for Remand, ECF No. 17.
Following Plaintiffs Unopposed Application for Attorney Fees under the Equal Access to
Justice Act (EAJA), 28 U.S.C. § 2412, I entered an order awarding Plaintiff$4,718.94 in fees in this
matter. Order EAJA Fees, ECF No. 22.
On remand, Plaintiff was awarded retroactive benefits. Plaintiffs attorney, Tim Wilborn,
now seeks an award of fees pursuant to 42 U.S.C. § 406(b) in the amount of $12,722.94, less the
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amounts already received. Defendant has no objection to the request. Mot. Art 'y Fees, ECF No. 23;
Response, ECF No. 24. For the reasons that follow, Plaintiffs motion is granted.
After 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)(l)(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.
Under 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."' Crattford v. Astrue, 586 F .3d 1142,
1152 (9th Cir. 2009) (en bane) (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.
Here, the terms of the contingent-fee agreement between Plaintiff and Attorney Wilborn are
within the statutory limits of§ 406(b). The $12,722.94 in attorney fees Wilborn seeks does not
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exceed 25 percent of the past due benefits awarded to Plaintiff. See Mot.. Att'y Fees at 1 & Ex. 1 at
2, ECF No. 23.
I have reviewed the record in the case, the motion, and the suppo1iing 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 Crav.ford, I find the requested fees reasonable. There is no indication
that Attorney Wilborn 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 Wilborn, 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 Crav.ford, I find that
Plaintiffs counsel has demonstrated that a 25 percent fee is reasonable for this case.
Attorney Wilborn represents that he has received $4, 718. 94 in fees previously awarded under
EAJA. Accordingly, the requested fees of$12,722.94 under§ 406(b) must be reduced by the EAJA
fees. Therefore, the Commissioner is directed to send Plaintiffs attorney $8,004.00, less any
applicable processing fees as allowed by statute.
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For these reasons, Plaintiffs Motion for Attorney Fees (ECF No. 23) pursuant to 42 U.S.C.
§ 406(b) in the amount of $8,004.00 is GRANTED.
IT IS SO ORDERED.
day of FEBRUARY, 2018.
Malcolm F. Marsh
United States District Judge
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