Simpson v. Commissioner Social Security Administration

Filing 23

ORDER - Plaintiff's counsel's amended motion for attorney fees pursuant to 42 U.S.C. § 406(b) (Dkt. 22 ) is GRANTED. Plaintiff's counsel is entitled to $16,902.22, in § 406(b) fees, representing approximately 25 percent of Plaintiff's retroactive benefits recovery. When issuing the section 406(b) check for payment to Plaintiff's attorney, the Commissioner is directed to subtract the $4,484.57 previously awarded under EAJA and send Plaintiff&# 039;s attorney the balance of $12,417.65, less any applicable administrative assessment as allowed by statute. The original motion for § 406(b) fees (Dkt. 21 ) is DENIED AS MOOT. Signed on 2/10/2016 by Judge Michael H. Simon. (mja) Modified on 2/10/2016 to change date signed (mja).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DALE SIMPSON,
Plaintiff,

Case No. 3:13-cv-00584-SI
ORDER

v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
Michael H. Simon, District Judge.
On November 6, 2014, the Court reversed the Commissioner’s determination that
Plaintiff was not disabled and remanded the matter back to the agency for further proceedings.
Dkt. 16. On January 23, 2015, the Court granted Plaintiff’s unopposed application for attorney’s
fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, in the amount of
$4,484.57. Dkt. 20.
Plaintiff’s counsel now moves for attorney’s fees of $ 16,902.22 pursuant to 42 U.S.C.
§ 406(b). Dkt. 22.1 This figure represents 25 percent of Plaintiff’s retroactive benefits. Plaintiff’s

1

Plaintiff’s counsel originally filed a motion on February 4, 2016 (Dkt. 21), but filed an
amended motion on February 9, 2016. Plaintiff’s original motion is denied as moot.

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counsel requests an additional payment from Plaintiff of $12,417.65, which represents the
requested $16,902.22 less the EAJA fee of $4,484.57 already received. Although defendant does
not object to the proposed award, this court must perform an independent review to ensure that
the award is reasonable. Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002). For the following
reasons, plaintiff's counsel's motion for fees is granted.
STANDARDS
Under 42 U.S.C. § 406(b), a court entering judgment in favor of a social security
claimant who was represented by an attorney “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.” Crawford v. Astrue, 586
F.3d 1142, 1147 (9th Cir. 2009). Counsel requesting the fee bears the burden to establish the
reasonableness of the requested fee. Gisbrecht, 535 U.S. at 807. The attorney’s fee award is paid
by the claimant out of the past-due benefits awarded; the losing party is not responsible for
payment. Gisbrecht, 535 U.S. at 802.
A court reviewing a request for attorney’s fees under § 406(b) “must respect ‘the primacy
of lawful attorney-client fee agreements,’ ‘looking first to the contingent-fee agreement, then
testing it for reasonableness.’” Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 793,
808). Routine approval of fees pursuant to a contingency fee agreement calling for the statutory
maximum is, however, disfavored. See Fintics v. Colvin, 2013 WL 5524691, at *2 (D. Or. Oct. 2,
2013). Contingent fee agreements that fail to “yield reasonable results in particular cases” may
be rejected. Gisbrecht, 535 U.S. at 807. There is no definitive list of factors for determining the
reasonableness of the requested attorney’s fees, but courts may consider the character of the
representation, the results achieved, whether there was delay attributable to the attorney seeking
the fee, and whether the fee is in proportion to the time spent on the case (to avoid a windfall to
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attorneys). See Id. at 808; Crawford, 586 F.3d at 1151-52. Although the Supreme Court has
instructed against using the lodestar method to calculate fees, a court may “consider the lodestar
calculation, but only as an aid in assessing the reasonableness of the fee.” Crawford, 586 F.3d
at 1148; see also Gisbrecht, 535 U.S. at 808 (noting that courts may consider counsel’s record of
hours spent representing claimant and counsel’s normal hourly billing rate for non-contingency
work as an aid in considering reasonableness of requested fees).
DISCUSSION
As prescribed by Gisbrecht and Crawford, the Court begins its analysis by reviewing the
contingency fee agreement executed by Plaintiff and her counsel. Dkt. 22-4. Plaintiff agreed to
pay attorney’s fees not to exceed 25 percent of the back benefits awarded. Here, Plaintiff was
awarded approximately $67,608.90 in back benefits, so the requested fee award is within the
statutory maximum.
The Court next considers the appropriate factors to determine whether a downward
adjustment is necessary in this case, and finds that no downward adjustment is warranted.
Plaintiff’s counsel achieved outstanding results for Plaintiff (remand for an award of benefits),
the representation of Plaintiff was professional, there was no significant delay attributable to
Plaintiff’s counsel, and the fee was in proportion to the time spent on the case and would not
result in a windfall to Plaintiff’s counsel. Plaintiff’s counsel spent approximately 35.1 hours on
the case. The effective hourly rate for the requested fee is, therefore, approximately $481.54,
which is below effective hourly rates that have been approved in this district. See, e.g., Quinnin
v. Comm’r, 2013 WL 5786988, at *4 (D. Or. Oct. 28, 2013) (approving de facto hourly rate of
$1,240 for attorney time); Ali v. Comm’r, 2013 WL 3819867 (D. Or. July 21, 2013) (approving
de facto hourly rate of $1,000); Breedlove v. Comm’r, 2011 WL 2531174 (D. Or. June 24, 2011)
(approving de facto hourly rate of $1,041.84).
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CONCLUSION
Plaintiff’s counsel’s amended motion for attorney fees pursuant to 42 U.S.C. § 406(b)
(Dkt. 22) is GRANTED. Plaintiff’s counsel is entitled to $16,902.22, in § 406(b) fees,
representing approximately 25 percent of Plaintiff's retroactive benefits recovery. When issuing
the section 406(b) check for payment to Plaintiff's attorney, the Commissioner is directed to
subtract the $4,484.57 previously awarded under EAJA and send Plaintiff's attorney the balance
of $12,417.65, less any applicable administrative assessment as allowed by statute. The original
motion for § 406(b) fees (Dkt. 21) is DENIED AS MOOT.
IT IS SO ORDERED.
DATED this 10th day of February, 2016.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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