Ross v. Commissioner of Social Security Administration

Filing 39

ORDER: Order on Attorney Fees. Signed on 11/28/2016 by Judge Malcolm F. Marsh. (ma2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
STEPHANIE L. ROSS,
Plaintiff,

Case No. 3:12-cv-00950-MA
ORDER ON ATTORNEY FEES

v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MARSH, Judge
Plaintiff Stephanie L. Ross brought this action seeking review of the Commissioner's
decision to deny her applications for disability insurance benefits and supplemental security income
disability benefits. In an October 23, 2013 Order, I reversed the Commissioner's decision and
remanded the case for further administrative proceedings. Order, ECF No. 30.
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$5, 760.29 in fees in this
matter. Order, ECF No. 36.
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 amountof$14,455.25. Defendant
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has no objection to the request. Unopposed Mot. Att'y Fees, ECF No. 37. For the reasons that
follow, Plaintiffs motion is granted.

STANDARD
After entering a judgment in favor of a Social Security claimant who was represented by
counsel, a cou1i "may dete1mine 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 offees 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 comi must first examine the contingency fee agreement to dete1mine
whether it is within the statutmy 25 percent cap. Id at 800. The court also must "'review for
reasonableness fees yielded by [contingency fee] agreements."' Cranford v. Astrue, 586 F.3d 1142,
1152 (9th Cir. 2009) (en bane) (quoting Gisbrecht, 535 U.S. at 808)). As set forth in Cra11ford, the
comi 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 propo1iion 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 Wilborn are
within the statutmy limits of§ 406(b). The $14,455.25 in attorney fees Wilborn seeks amounts to

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25 percent of the retroactive benefits awarded to Plaintiff. See Mem. Supp. Mot. Attn'y Fees Ex.
1 at p. 2, ECF No. 37.
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 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 sh011, after applying the Gisbrecht factors, as interpreted by Crmiford, I find that

Plaintiffs counsel has demonstrated that a 25 percent fee is reasonable for this case.
Attorney Wilborn represents thathe has received $5, 760.29 in fees previously awarded under
EAJA. Accordingly, the requested fees of$14,455.25 under§ 406(b) must be reduced by the EAJA
fees. Therefore, the Commissioner is directed to send Plaintiffs attorney $8,694.96, less any
applicable processing fees as allowed by statute.

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CONCLUSION

For these reasons, Plaintiffs Motion for Attorney Fees (ECF No. 37) pursuant to 42 U.S.C.

§ 406(b) in the amount of$8,694.96 is GRANTED.
IT IS SO ORDERED.
DATED this ";()'°day ofNOVEMBER, 2016.

Malcolm F. Marsh
United States District Judge

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