Weaver v. Commissioner Social Security Administration
Filing
39
OPINION & ORDER: The motion for attorney fees pursuant to § 406(b) 33 filed by Plaintiff's counsel is GRANTED in part and DENIED in part. Plaintiff's counsel is to be awarded $18,748.50, less the EAJA attorney fees of $4,378.97, for a net award of $14,369.53 to be paid from Plaintiff's past-due benefits. See 4-page opinion & order attached. Signed on 9/28/2012 by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
SEMAJ WEAVER,
Plaintiff,
No. 3:10-cv-06086-HZ
OPINION & ORDER
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
Rory Linerud
LINERUD LAW FIRM
P.O. Box 1105
Salem, OR 97308
Attorney for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1 - OPINION & ORDER
DISTRICT OF OREGON
1000 SW Third Avenue, Ste 600
Portland, OR 97201
SUMMER STINSON
Special Assistant United States Attorney
OFFICE OF THE GENERAL COUNSEL
SOCIAL SECURITY ADMINISTRATION
701 Fifth Avenue, Ste 2900 M/S 221A
Seattle, WA 98104
HERNANDEZ, District Judge:
Now before me is a motion for attorney fees (doc. #33) filed by the attorney for
Semaj Weaver (“Plaintiff”). Plaintiff’s counsel seeks an award under the Social Security
Act, 42 U.S.C. § 406(b) (“§ 406(b)”), for attorney fees in the amount of $18,748.50.1 For
the reasons that follow, Plaintiff’s motion is GRANTED in part and DENIED in part.
STANDARD
Section 406(b) provides, in pertinent part, as follows:
Whenever a court renders a judgment favorable to a claimant under this
subchapter who was represented before the court by an attorney, the court
may determine and allow as part of its judgment a reasonable fee for such
representation, not in excess of 25 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).
The amount awarded is reduced by the amount of attorney fees awarded
under the Equal Access to Justice Act (“EAJA”). Gisbrecht v. Barnhart, 535 U.S.
789, 796 (2002).
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1
Plaintiff’s counsel originally sought attorney fees of $26,017.57, but conceded that the
proper amount to which he was entitled pursuant to § 406(b) was $18,748.50.
2 - OPINION & ORDER
DISCUSSION
In determining a § 406(b) fee request, the court must start with the amount agreed
upon by the claimant and her attorney, evaluating only whether that amount should be
reduced for one of three reasons: (1) because “the attorney provided substandard
representation,” (2) because “the attorney . . . engaged in dilatory conduct in order to
increase the accrued amount of past-due benefits,” or (3) because “the ‘benefits are large
in comparison to the amount of time counsel spent on the case.’” Crawford v. Astrue,
586 F.3d 1142, 1148-49 & n.7 (9th Cir. 2009) (en banc) (quoting Gisbrecht, 535 U.S. at
808). Here, the terms of the contingent-fee agreement between Plaintiff and Plaintiff’s
counsel are within the statutory limits of § 406. In addition, there is no indication that
Plaintiff’s counsel was either ineffective or dilatory. The benefits are also not so large in
comparison to the amount of time counsel spent on the case that a reduction of Plaintiff’s
fee request is justified.
Pursuant to the factors enunciated in Crawford, there are no grounds for reducing
the contingent fee arrangement between Plaintiff and Plaintiff’s counsel. Accordingly,
Plaintiff is entitled to an award of $18,748.50, which amounts to 25% of Plaintiff’s stated
retroactive benefits of $74,994.00, less the $4,378.97 in EAJA attorney fees previously
awarded by this court.
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3 - OPINION & ORDER
CONCLUSION
For the foregoing reasons, the motion for attorney fees pursuant to § 406(b) (doc.
#33) filed by Plaintiff’s counsel is GRANTED in part and DENIED in part. Plaintiff’s
counsel is to be awarded $18,748.50, less the EAJA attorney fees of $4,378.97, for a net
award of $14,369.53 to be paid from Plaintiff’s past-due benefits.
IT IS SO ORDERED.
Dated this
day of ____________, 2012.
MARCO A. HERNANDEZ
United States District Judge
4 - OPINION & ORDER
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