Blaine-Thede v. Commissioner of Social Security
Filing
31
ORDER: The Court GRANTS Plaintiff's Motion for Attorney Fees 29 Pursuant to 42 U.S.C. § 406(b) in the amount of $6,463.25 less the $3,199.86 in EAJA fees earlier granted to counsel on February 5, 2013. Thus, the Court awards Plaintiffs counsel $3,263.39 pursuant to Plaintiffs Motion. Signed on 09/16/2014 by Judge Anna J. Brown. See attached 8 page Opinion and Order for full text. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CHRISTINA BLAINE-THEDE,
Plaintiff,
12-CV-00281-BR
OPINION AND ORDER
v.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,1
Defendant.
MERRILL SCHNEIDER
Schneider Kerr Law Offices
P.O. BOX 14490
Portland, OR 97293
(503) 255-9092
Attorney for Plaintiff
1
Carolyn W. Colvin became the Acting Commissioner of Social
Security on February 14, 2013. Pursuant to Rule 25(d) of the
Federal Rules of Civil Procedure, Carolyn W. Colvin should be
substituted for Michael J. Astrue as Defendant in this case. No
further action need be taken to continue this case by reason of
the last sentence of Section 205(g) of the Social Security Act,
42 U.S.C. § 405.
1 - OPINION AND ORDER
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
(503) 727-1003
DAVID MORADO
Regional Chief Counsel
NANCIE A. MISHALANIE
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue
Suite 2900 M/S 901
Seattle, WA 98104-7075
(206) 615-2531
Attorneys for Defendant
BROWN, Judge.
This matter comes before the Court on Plaintiff Christina
Blaine-Thede's Motion for Attorney Fees (#29) Pursuant to
42 U.S.C. § 406(b).
For the following reasons, the Court GRANTS
Plaintiff's Motion and awards attorneys’ fees to Plaintiff in the
amount of $3,263.39.
BACKGROUND
On February 16, 2012, Plaintiff filed a Complaint in this
Court in which she sought judicial review of a final decision of
the Commissioner of the Social Security Commission denying
Plaintiff's applications for disability insurance benefits (DIB)
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OPINION AND ORDER
and supplemental security income payments (SSI) under Titles II
and XVI of the Social Security Act.
On December 17, 2012, this Court issued an Order (#22)
reversing the Commissioner’s decision and remanding the matter
for further administrative proceedings pursuant to sentence four
of 42 U.S.C. § 405(g).
On that same day the Court entered a
Judgment (#23) reversing the Commissioner's decision and
remanding this matter to the Commissioner.
On February 4, 2013, the parties filed a Stipulation (#24)
for Attorneys' Fees under the Equal Access to Justice Act (EAJA),
28 U.S.C. § 2412, in the amount of $3,199.86.
On February 5,
2013, the Court entered an Order (#26) based on the Stipulation
in which it awarded attorneys' fees under EAJA to Plaintiff's
counsel in the amount of $3,199.86.
On June 17, 2014, Plaintiff filed a Motion (#29) for
Attorney Fees pursuant to 42 U.S.C. § 406(b) in which Plaintiff
seeks $6,463.25 in additional attorneys' fees pursuant to a
contingent-fee agreement for work Plaintiff’s counsel performed
in this matter before this Court.
STANDARDS
Section 406(b) of the Social Security Act "controls fees for
representation [of Social Security claimants] in court."
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OPINION AND ORDER
Gisbrecht v. Barnhart, 535 U.S. 789, 794 (2002)(citing 20 C.F.R.
§ 404.1728(a)).
Under § 406(b) "a court may allow 'a reasonable
fee . . . not in excess of 25 percent of the . . . past-due
benefits' awarded to the claimant."
42 U.S.C. § 406(b)(1)(A)).
Id. at 795 (quoting
Section 406(b) requires the court
first to "determine whether a fee agreement has been executed
between the plaintiff and his attorney, and, if so, whether such
agreement is reasonable."
Garcia v. Astrue, 500 F. Supp. 2d
1239, 1242 (C.D. Cal. 2007)(citing Gisbrecht, 535 U.S. at 807).
"Agreements are unenforceable to the extent that they
provide for fees exceeding 25 percent of the past-due benefits."
Gisbrecht, 535 U.S. at 807 (citing 42 U.S.C. § 406(B)(1)).
Even
"[w]ithin the 25 percent boundary, [however,] . . . the attorney
for the successful claimant must show that the fee sought is
reasonable for the services rendered."
Id.
DISCUSSION
I.
Attorneys' Fee Agreement.
Plaintiff entered into a contingent-fee agreement in which
she agreed to pay her attorneys the greater of (1) 25 percent of
the past-due benefits resulting from her claim or (2) such amount
as her attorney is able to obtain pursuant to EAJA.
This type of
contingent-fee agreement for 25 percent of all past-due benefits
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OPINION AND ORDER
awarded is characteristic of Social Security benefit cases.
See
Gisbrecht, 535 U.S. at 807.
II.
Reasonableness of Attorneys' Fees Requested.
"[T]he attorney for the successful claimant must show that
the fee sought is reasonable for the services rendered."
Gisbrecht, 535 U.S. at 807.
When determining whether a fee is
reasonable a court may consider a number of relevant factors:
the attorneys' risk of loss, the character of representation and
the results achieved, delay by counsel, and whether the amount of
benefits is in proportion to the amount of time counsel spent on
the case to ensure that the award does not constitute a windfall
to the plaintiff's counsel.
Crawford v. Astrue, 586 F.3d 1142,
1151-52 (9th Cir. 2009)(citing Gisbrecht, 535 U.S. at 808).
single factor is dispositive.
Id.
No
The district court's decision
with respect to a fee award "qualif[ies] for highly respectful
review."
Gisbrecht, 535 U.S. at 808.
Here Plaintiff requests fees of $6,463.25 pursuant to the
contingency-fee agreement between Plaintiff and her counsel.
A
review of the record establishes Plaintiff's counsel was able to
secure a satisfactory award of past benefits for Plaintiff
through litigation at the district-court level after Plaintiff
had sought and been denied benefits by an Administrative Law
Judge and on administrative appeal.
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OPINION AND ORDER
The Court, therefore,
concludes Plaintiff's counsel provided competent, capable
representation, and the record does not reflect counsel caused
any delay of Plaintiff's claim.
In addition, Defendant does not
contend the amount of fees requested is unreasonable.
The Court also takes into consideration the fact that
counsel must take claims such as these on a contingency basis and
that counsel bear the risk of not receiving any compensation for
their work if they do not recover past-due benefits for their
clients.
See Crawford, 586 F.3d at 1152.
Accordingly, the Court concludes a contingent-fee award of
25 percent of $49,856.00 or $6,463.25 is reasonable.
III. The net amount of attorneys' fees in this matter does not
exceed 25 percent of Plaintiff's past-due benefits.
42 U.S.C. § 406(a)(1) allows a plaintiff’s attorneys to
recover their fees for representing the plaintiff at the
administrative level.
In addition, a court may award attorneys'
fees and costs to the plaintiff’s attorneys under EAJA for their
representation of the plaintiff in court if certain criteria are
met.
See 28 U.S.C. § 2412(d)(1)(A).
See also Perez-Arellano v.
Smith, 279 F.3d 791, 793 (9th Cir. 2002).
Finally, as noted,
under § 406(b) an attorney may not receive an award of fees for
representation of the plaintiff in court “in excess of 25 percent
of the . . . past-due benefits awarded to the claimant."
42 U.S.C. § 406(b)(1)(A).
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OPINION AND ORDER
An attorney who receives fees for the
same work under EAJA and § 406(b) must refund the smaller fee to
the plaintiff.
Parrish v. Comm’r of Soc. Sec. Admin., 698 F.3d
1215, 1218 (9th Cir. 2012).
Congress passed this amendment “in
order to maximize the award of past-due benefits to claimants and
to avoid giving double compensation to attorneys . . . .”
Id.
The Court notes the 25-percent cap on attorneys' fees does not
include awards made under § 406(a).
Clark v. Astrue, 529 F.3d
1211, 1214-15 (9th Cir. 2008)(25-percent limit in § 406(b) only
applies to attorneys’ fees awarded under § 406(b) for
representation in court and does not include attorneys’ fees
awarded under § 406(a) for representation at the administrative
level).
On remand the Commissioner awarded Plaintiff $49,856.00 in
past-due benefits.
As noted, the 25-percent cap on attorneys'
fees does not include awards made under § 406(a).
Id.
Nevertheless, Plaintiff's counsel only moves for attorneys' fees
of $6,463.25 pursuant to § 406(b) for his representation of
Plaintiff in this Court less the $3,199.86 in EAJA fees awarded
to him for a total of additional attorneys’ fees in the amount of
$3,263.39.
The Court grants Plaintiff’s Motion.
CONCLUSION
For these reasons, the Court GRANTS Plaintiff's Motion for
Attorney Fees (#29) Pursuant to 42 U.S.C. § 406(b) in the amount
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OPINION AND ORDER
of $6,463.25 less the $3,199.86 in EAJA fees earlier granted to
counsel on February 5, 2013.
Thus, the Court awards Plaintiff’s
counsel $3,263.39 pursuant to Plaintiff’s Motion.
IT IS SO ORDERED.
DATED this 16th day of September, 2014.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
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OPINION AND ORDER
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