McGrew v. Commissioner Social Security Administration
ORDER - Plaintiff's counsel's unopposed motion for attorney fees pursuant to 42 U.S.C. § 406(b) (ECF 31 ) is GRANTED. Plaintiff's counsel is entitled to $14,175 in § 406(b) fees, representing 25 percent of Plain tiff's retroactive benefits recovery. When issuing the section 406(b) check for payment to Plaintiff's attorney, the Commissioner is directed to subtract the $7,705.22 previously awarded under EAJA. The balance of $6,469.78, less any applicable administrative assessment as allowed by statute, should be sent to Plaintiff's counsel, by check payable to Bruce Brewer, at P.O. Box 421, West Linn, OR 97068. Signed on 7/6/2017 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 3:13-cv-1909-SI
NANCY A. BERRYHILL,
Commissioner of Social Security,
Michael H. Simon, District Judge.
On March 25, 2015, the Court remanded this case for an award of benefits. On July 9,
2015, the Court, over the Commissioner’s objection, granted Plaintiff’s application for attorney’s
fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412, in the amount of
Plaintiff’s counsel now moves for attorney’s fees of $14,175, pursuant to 42 U.S.C.
§ 406(b). This figure represents 25 percent of Plaintiff’s retroactive benefits. Plaintiff’s counsel
requests an additional payment from Plaintiff of $6,469.78, which represents the requested
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$14,175 less the EAJA fee of $7,705.22 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.
Under 42 U.S.C. § 406(b), a court entering judgment in favor of a social security
disability insurance 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
attorneys). See Id. at 808; Crawford, 586 F.3d at 1151-52. Although the Supreme Court has
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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).
As prescribed by Gisbrecht and Crawford, the Court begins its analysis by reviewing the
contingency fee agreement executed by Plaintiff and his counsel. Plaintiff agreed to pay
attorney’s fees not to exceed 25 percent of the back benefits awarded, which is within the
statutory maximum and is the amount Plaintiff’s counsel seeks in this motion.
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 excellent 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 41.2 hours on
the case. The effective hourly rate for the requested fee is, therefore, approximately $344, 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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Plaintiff’s counsel’s unopposed motion for attorney fees pursuant to 42 U.S.C. § 406(b)
(ECF 31) is GRANTED. Plaintiff’s counsel is entitled to $14,175 in § 406(b) fees,
representing 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 $7,705.22 previously awarded under EAJA. The balance of $6,469.78, less any applicable
administrative assessment as allowed by statute, should be sent to Plaintiff’s counsel, by check
payable to Bruce Brewer, at P.O. Box 421, West Linn, OR 97068.
IT IS SO ORDERED.
DATED this 6th day of July, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
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