Sutherland v. Commissioner Social Security Administration

Filing 26

ORDER: Order on Attorney Fees 25 . Signed on 3/14/2018 by Judge Malcolm F. Marsh. (ma2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SUZANNE E. SUTHERLAND,
Plaintiff,

Case No. 3:16-cv-00321-MA
ORDER ON ATTORNEY FEES

v.
COMMISSIONER SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MARSH, Judge
Plaintiff Suzanne E. Sutherland brought this action seeking review of the Commissioner's
decision to deny her application for disability insurance benefits. In a February 10, 2017 Order, I
reversed the Commissioner's decision and remanded the case for an immediate award of benefits.
Op. & Order, ECF No. 19.
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$6,471.25 in fees in this
matter. Order EAJA Fees, ECF No. 24.
Plaintiff was awarded retroactive benefits under Title II and Widow's Benefits in the amount
of approximately $58,732.85. Plaintiffs attorney, Karen Stolzberg, now seeks an award of fees

1 - ORDER ON ATTORNEY FEES

pursuant to 42 U.S.C. § 406(b) in the amount of $13,711.25, less the amount already received.
Defendant has no objection to the request. Unopposed Mot. Att'y Fees at 1, ECF No. 25. 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 court "may determine 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)(1 )(A). An award of fees 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 court must first examine the contingency fee agreement to determine
whether it is within the statutory 25 percent cap. Id. at 800. The court also must '"review for
reasonableness fees yielded by [contingency fee] agreements."' Crawfordv. Astrue, 586 F.3d 1142,
1152 (9th Cir. 2009) (en bane) (quoting Gisbrecht, 535 U.S. at 808)). As set forth in Crawford, the
court 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 proportion with the time spent on the case, and (5) the risk assumed by
counsel in accepting the case. Id. at 1151-52.

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2 - ORDER ON ATTORNEY FEES

DISCUSSION
Here, the terms of the contingent-fee agreement between Plaintiff and Attorney Stolzberg are
within the statutory limits of§ 406(b). The $13,711.25 in attorney fees Stolzberg seeks does not
exceed 25 percent of the past due benefits awarded to Plaintiff. See Unopposed Mot. Attn'y Fees
Attach. 1at2, ECF No. 25.
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 Stolzberg was either ineffective or dilatory, and she achieved a favorable result for
Plaintiff. Furthermore, the amount of fees requested is not out of proportion to the work performed
by Stolzberg, 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 short, after applying the Gisbrecht factors, as interpreted by Crawford, I find that
Plaintiffs counsel has demonstrated that a 25 percent fee is reasonable for this case.
Attorney Stolzberg represents that she has received $6,471.25 in fees previously awarded
under EAJA. Accordingly, the requested fees of$13,71 l.25 under§ 406(b) must be reduced by the
EAJA fees. Therefore, the Commissioner is directed to send Plaintiffs attorney $7,240.00 less any
applicable processing fees as allowed by statute.

/Ill
/Ill
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3 - ORDER ON ATTORNEY FEES

CONCLUSION
For these reasons, Plaintiffs Unopposed Motion for Attorney Fees (ECF No. 25) pursuant
to 42 U.S.C. § 406(b) in the amount of $7,240.00 is GRANTED.
IT IS SO ORDERED.
DATED this _Lf!_ day of MARCH, 2018.

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Malcolm F. Marsh
United States District Judge

4 - ORDER ON ATTORNEY FEES