Watters v. Commissioner of Social Security

Filing 28

ORDER: Granting in Part Motion for Attorney Fees 25 . Counsel is entitled to $14,982.09 in§ 406(b) fees, representing twenty-two percent of the disabled plaintiff's retroactive benefits recovery. After subtracting the $3,855.66 EAJA fee award previously granted to counsel, the final fee award is $11,126.43. Gisbrecht, 535 U.S. at 796. Signed on 4/3/2013 by Judge Ancer L. Haggerty. (sss)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

BERL WATTERS,
Plaintiff,

Case No. 3:11-cv-00577-HA
ORDER

v.
COMMISSIONER of Social Security,
Defendant.

HAGGERTY, District Judge:
On May 2, 2010, this court entered a Judgment remanding this matter to the
Commissioner for further proceedings based on the stipulation of the parties. Following the
remand, plaintiff was awarded benefits.
1 --ORDER

Plaintiffs counsel now moves for a fee award of $17,025.10 pursuant to 42 U.S.C. §
406(b)(l)(A). Plaintiffs counsel was previously awarded $3,855.66 pursuant to the Equal
Access to Justice Act (EAJA), 28 U.S. C.§ 2412. Any amount awarded now would be awarded
after subtracting the EAJA award. The total requested fee of$17,025.1 0 constitutes twenty-five
percent of plaintiffs retroactive benefits. Although defendant does not object to the proposed
award, this comt performs an independent review to ensure that the award is reasonable.
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). For the following reasons, plaintiffs counsel's
Unopposed Motion for Attomey Fees [25] is granted in pmt.
DISCUSSION

After entering a judgment in favor of a Social Security claimant, the comt may award a
reasonable fee to the claimant's counsel that does not exceed twenty-five percent of the total
amount of the past-due benefits to which the claimant is entitled. 42 U.S.C. § 406(b)(l)(A).
Pursuant to the statutory guidance, plaintiffs counsel and his client executed a fee agreement
providing that counsel's fee following a favorable outcome from this court would equal twentyfive percent of any past-due benefits received. This agreement is within the statutmy limits.
The fee award currently sought by counsel represents twenty-five percent of plaintiffs
total award of past -due benefits. The requested contingent fee awmd for plaintiffs counsel,
however, is neither automatic nor presumed. Dunnigan v. Comm'r, Civil No. 07-1645-AC, 2009
WL 6067058, *7 (D. Or. Dec. 23, 2009) (quoting Gisbrecht, 535 U.S. at 807 n.l7). This court
may reject a contingent fee agreement that fails to "yield reasonable results" in a pmticular case.
Gisbecht, 535 U.S. at 807. Counsel therefore must establish that the requested award is
reasonable, even if it does not exceed the twenty-five percent ceiling. !d.
This court may reduce a contingent fee in cases in which the attomey provided

2-- ORDER

substandard representation, engaged in dilatmy conduct that increased the accrued amount of
past-due benefits, or if the benefits were disproportionate to the amount of time spent on the case.

Id at 808. In deciding the reasonableness of the fee, the couti should consider: (1) the character
of the representation; (2) the results achieved; (3) any delay attributable to the attomey seeking
the fee; and (4) whether the benefits obtained were "not in propmiion to the time spent on the
case" such that the award would constitute an unwarranted windfall. Crawford v. Astrue, 586
F.3d 1142, 1151-53 (9th Cir. 2009).
The record in this case provides no basis for a reduction in the requested § 406(b) fee due
to the character of counsel's representation, the results obtained, or any delay. Plaintiffs counsel
presented sound arguments in his opening brief that resulted in a stipulated remand for fi.Jrther
proceedings and an eventual award of benefits for his client. Plaintiffs counsel sought, and was
granted, one sixty-day extension of time in which to file the opening brief. Though this delay
caused some additional past due benefits to accrue, the comi does not find a reduction is in order
for this short delay. Accordingly, a reduction of counsel's fee request is unwarranted under these
three factors.
A district court may reduce a § 406(b) award if "benefits ... are not in propotiion to the
time spent on the case." Crawford, 586 F.3d at 1151 (citing Gisbrecht, 535 U.S. at 808). The
Supreme Court explained that "[i]fthe 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.
The Ninth Circuit has also recently explained that this court may evaluate the complexity and
risks of the specific case at issue when assessing the reasonableness of a fee request. Stokes v.
Comm'r ofSoc. Sec. Admin., No. 10-35628, 2011 WL 1749064, at* I (9th Cir. 2011)(quoting
Crawford, 586 F.3d at 1153). This comi does not provide an in depth review of the general risks

3-- ORDER

of Social Security cases, because the general risks in all Social Security cases are the same. It is
those general risks, combined with the specific risks in a difficult and time consuming case, that
allow this court to award attorney fees of twenty-five percent. However, the general risks of
Social Security representation alone do not wan·ant large fee awards.
In this comi's estimation, despite counsel's assertion to the contrmy, this case was less
risky than the average Social Security case. Additionally, the issues presented were in no way
difficult, complex, or novel questions of law or fact. It was a relatively simple and
straightforward case dealing with the smis of issues (improper rejection of physician's opinions,
treatment of plaintiff's testimony, etc ...) that are commonplace in this type of litigation.
Plaintiff's counsel, and his associate, worked 21.10 hours on this case. In support of his
requested a fee award, counsel compares his requested fee award with the Pmiland area's average
billing rate for non-contingent cases and his own billing rate for non-contingent cases and then
applies a number of multipliers in order to account for the general risks of contingent fee Social
Security litigation. While this cou1i is not persuaded that the multipliers used are necessarily
appropriate, this analysis is useful in helping this comi assess the reasonableness of the fee
requested in light of the work performed in this particular case. Gisbrecht, 535 U.S. at 808.
Here, the comi concludes that the requested fee is unreasonable because "the benefits are
large in comparison to the amount of time counsel spent on the case [and] a downward
adjustment is ... in order." Gisbrecht, 535 U.S. at 808. Additionally, this case was less risky
than the typical case and was not complex or unusual. While giving primacy to the contingent
fee agreement, this court concludes that a reasonable fee in this case would constitute twenty-two
percent of the retroactive awards.

4-- ORDER

CONCLUSION

For the reasons stated, counsel's Unopposed Motion for Attorney Fees [25] is granted in
part. Counsel is entitled to $14,982.09 in§ 406(b) fees, representing twenty-two percent of the
disabled plaintiff's retroactive benefits recovery. After subtracting the $3,855.66 EAJA fee
award previously granted to counsel, the final fee award is $11,126.43. Gisbrecht, 535 U.S. at
796.
IT IS SO ORDERED.
DATED this _2___ day of April, 2013

~:idi~
Ancer L. Haggerty
United States District Judge

5-- ORDER