Mulligan v. Commissioner Social Security Administration

Filing 38

ORDER: Granting Plaintiff's Motion for Attorney Fees Pursuant to 42 U.S.C. §406(b) 35 in the amount of $45,137.45. See Order for details. Signed on 12/2/2013 by Magistrate Judge John Jelderks. (jtj)

Case 3:11-cv-01113-JE

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Filed 11/26/13

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Page ID#: 634

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
RHONDA A. MULLIGAN,
Plaintiff,

Civil Case No. 3:11-CV-01113-JE

v.
COMMISSIONER,
SOCIAL SECURITY ADMINISTRATION,

ORDER AWARDING
ATTORNEY FEES PURSUANT TO
42 U.S.C. SECTION 406(b)

Defendant.

Plaintiff Rhonda A. Mulligan brought this action seeking review of the
Commissioner’s decision to deny her application for disability insurance benefits. This
Court reversed the Commissioner’s decision and remanded the case for an award of
benefits.
Following Plaintiff’s unopposed application for Attorney Fees under the Equal
Access to Justice Act (EAJA), 28 U.S.C. Section 2412, this Court entered an order
awarding plaintiff $8,500.00 in fees in this matter.
Plaintiff’s attorney, Phyllis Burke, now seeks an award of fees pursuant to 42
U.S.C. Section 406(b) in the amount of $45,137.45. Defendant has no objection to the
request. For the reasons that follow, plaintiff’s motion is granted.
STANDARD
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
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Case 3:11-cv-01113-JE

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U.S.C. Section 406(b)(1)(A). An award of fees under Section 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.’”
Crawford v. Astrue, 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.
DISCUSSION
Here, the terms of the contingent-fee agreement between Plaintiff and Attorney
Burke are within the statutory limits of section 406(b). The $45,137.45 in attorney fees
Burke seeks amounts to 25 percent of the retroactive benefits awarded to Plaintiff. See
Memorandum in Support (#36), Ex. 3.
I have 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, I find the

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Page ID#: 636

requested fees reasonable. There is no indication that Attorney Burke was either
ineffective or dilatory, and she achieved a favorable result for plaintiff. Furthermore, the
amount of fees requested is not out of proportion to the work performed by Burke, 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 Crawford, I find
that plaintiff’s counsel has demonstrated that a 25 percent fee is reasonable for this case.
As an EAJA fee of $8,500.00 has previously been awarded and paid in this case,
that amount shall be subtracted from the $45,137.45 fee awarded pursuant to Section
406(b). Therefore, the Commissioner is directed to send plaintiff’s attorney $36,637.75,
less any applicable processing fees allowed by statute.
CONCLUSION
For these reasons, Plaintiff’s Motion for Attorney Fees (#35) pursuant to 42
U.S.C. Section 406(b) in the amount of $45,137.45 is GRANTED.
IT IS SO ORDERED.
DATED this ____ day of ___________, 2013.

_____________________________
U.S. District Court Judge/Magistrate

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