Lester v. Commissioner Social Security Administration

Filing 28

ORDER - Plaintiff's counsel's motion for attorney fees pursuant to 42 U.S.C. § 406(b) (ECF 24) is GRANTED IN PART. Plaintiff's counsel is entitled to $11,329.11 in § 406(b) fees, representing 25 percent of Plaint iff's applicable retroactive benefits recovery. When issuing the section 406(b) check for payment to Plaintiff's attorney, the Commissioner is directed to subtract the $6,000 previously paid to Plaintiff's counsel and send Plaintiff's attorney the balance of $5,239.11, less any applicable administrative assessment as allowed by statute. Signed on 1/9/2017 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BARBARA LESTER,
Plaintiff,

Case No. 6:14-cv-1151-SI
ORDER

v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
On May 18, 2015, the Court granted the parties’ stipulation motion to remand this matter
for further proceedings. On August 10, 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 $3,320.01. EAJA fees are subject to the Treasury Offset Program, and all of the
awarded EAJA fees was taken under that program, resulting in Plaintiff’s counsel receiving
nothing in EAJA fees. Plaintiff’s counsel did receive a $6,000 agency fee award.
Plaintiff’s counsel now moves for attorney’s fees of $11,817.77 pursuant to 42 U.S.C.
§ 406(b). ECF 36. Plaintiff asserts that this figure represents 25 percent of Plaintiff’s retroactive
benefits, which Plaintiff asserts is $47,271.09. Thus, Plaintiff’s counsel requests an additional

ORDER – Page 1

payment from Plaintiff of $5,817.77, which represents the requested $11,817.77 less the agency
fee award of $6,000 already received by Plaintiff’s counsel.
Defendant’s only objection to the proposed fee award is that Plaintiff included the
months of August, September, and October 2016 in calculating the $47,271.09 “past-due
benefits.” Under the Social Security regulations, “past-due benefits” do not include the month
the “favorable” “decision or determination” is made. 20 C.F.R. § 416.1503. In August 2016
Defendant made its decision that Plaintiff met the medical requirements to receive Supplemental
Security Income (“SSI”) benefits and in November 2016 Defendant made its decision that
Plaintiff met the non-medical requirements. See ECF 25-3. Defendant argues that the
“favorable” decision to award benefits for purposes of 20 C.F.R. § 416.1503 occurred in
August 2016, and that the decision from November 2016 was merely one of “eligibility.”
Defendant also argues that its interpretations of its own regulations is “controlling unless plainly
erroneous or inconsistent with the regulation.” Auer v. Robbins, 519 U.S. 452, 461 (1997).1
Plaintiff does not respond to Defendant’s argument. Accordingly, the Court accepts that
Defendant’s argument is meritorious. See See Smith v. San Diego Americans for Safe Access,
2014 WL 1729021, at *4 (S.D. Cal. May 1, 2014) (finding that for a particular issue the party
defending against the motion “has conceded the point, for present purposes, by failing to file a
response”); Sunbelt Rentals, Inc. v. Victor, 2014 WL 492364, at *9 (N.D. Cal. Feb. 5, 2014)
(““The Court construes Sunbelt’s lack of response as an admission that Victor’s argument is
meritorious.” (citing Ramirez v. Ghilotti Bros. Inc., 941 F. Supp. 2d 1197, 1210 (N.D. Cal. 2013)
(finding that the failure to respond to argument amounts to a concession that the argument has
1

But see Decker v. Nw. Env’t Def. Ctr., 133 S. Ct. 1326, 1338 (2013) (Roberts, C.J.,
concurring) (“It may be appropriate to reconsider that principle [Auer deference] in an
appropriate case. But this is not that case.”).

ORDER – Page 2

merit))); Ardente, Inc. v. Shanley, 2010 WL 546485, at *6 (N.D. Cal. Feb. 10, 2010) (“Plaintiff
fails to respond to this argument and therefore concedes it through silence.”). Thus, the Court
accepts Defendant’s proposed reduced calculation of back-due benefits, $ 45,316.42. The Court
makes its own calculation of attorney’s fees, noting that Defendant’s calculation is inaccurate.2
Although Defendant does not object to any other aspect of the proposed award, the 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
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
2

Defendant asserts that fees should be calculated as: “($45,316.42 × .25) - $3,320.01 =
$5,329.11.” ECF 27 at 4. Although Defendant proposes the correct end result, the proposed
mathematical calculation is incorrect. Taking 45,316.42 and multiplying it by 0.25 equals
11,329.11; subtracting 3,320.01 equals 8,009.10. Defendant’s calculation also misunderstands
the amounts already received by Plaintiff’s counsel. Plaintiff’s counsel did not receive any of the
$3,320.01 EAJA fees, but did receive a $6,000 agency fee award. Thus, the proper calculation is
($45,316.42 x 0.25) - $6,000. This equals $5,329.11, which is $488.67 less than the amount
requested by Plaintiff.

ORDER – Page 3

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
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 his counsel. ECF 25-2. 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 good results for Plaintiff (stipulated remand), the representation of
Plaintiff was professional, there was no 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
ORDER – Page 4

counsel. Plaintiff’s counsel spent approximately 17.5 hours on the case. The effective hourly rate
for the requested fee is, therefore, approximately $647.38, 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).
CONCLUSION
Plaintiff’s counsel’s motion for attorney fees pursuant to 42 U.S.C. § 406(b) (ECF 24) is
GRANTED IN PART. Plaintiff’s counsel is entitled to $11,329.11 in § 406(b) fees,
representing 25 percent of Plaintiff’s applicable retroactive benefits recovery. When issuing the
section 406(b) check for payment to Plaintiff’s attorney, the Commissioner is directed to subtract
the $6,000 previously paid to Plaintiff’s counsel and send Plaintiff’s attorney the balance of
$5,239.11, less any applicable administrative assessment as allowed by statute.
IT IS SO ORDERED.
DATED this 9th day of January, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

ORDER – Page 5