Matthews v. Commissioner Social Security Administration

Filing 27

ORDER - Plaintiff's counsel's motion for attorney fees pursuant to 42 U.S.C. § 406(b) (ECF 25 ) is GRANTED. Plaintiff's counsel is entitled to attorney's fees in the amount of $3,456.45. The Commissioner is dire cted to issue Plaintiff's attorney a section 406(b) check in the amount of $3,456.45, less any applicable administrative assessment as allowed by statute. Upon receipt of the 406(b) check, Plaintiff's counsel shall refund to Plaintiff the $3,071.51 previously received by Plaintiff's counsel under the EAJA. Signed on 1/15/2019 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ANGELA MATTHEWS,
Plaintiff,

Case No. 3:16-cv-2161-SI
ORDER

v.
NANCY A. BERRYHILL, Deputy
Commissioner for Operations, performing the
duties and functions not reserved to the
Commissioner of Social Security,
Defendant.
Michael H. Simon, District Judge.
On August 23, 2017, the Court remanded this case for further proceedings, based on the
stipulation of the parties. On November 22, 2017, the Court granted Plaintiff’s stipulated
application for attorney’s fees pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C.
§ 2412, in the amount of $3,071.51.
Plaintiff’s counsel now moves for attorney’s fees of $3,456.45 pursuant to 42 U.S.C.
§ 406(b). If awarded the requested § 406(b) attorney’s fees, Plaintiff’s counsel will reimburse

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Plaintiff the $3,071.51 EAJA fee award.1 Plaintiff’s retroactive benefits totaled $37,825.80.
Accordingly, the requested § 406(b) attorney’s fees represent approximately nine percent2 of
Plaintiff’s retroactive benefits. Defendant does not object to the requested fees.
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 v. Barnhart, 535 U.S. 789,
807 (2002). 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
Plaintiff’s counsel has already received a $6,000 agency fee award under 42 U.S.C.
§ 406(a). Fee awards under § 406(a), however, are not considered by the district court in
analyzing fee requests under § 406(b). See Clark v. Astrue, 529 F.3d 1211(9th Cir. 2008).
1

Plaintiff asserts that her requested fees are 25 percent of Plaintiff’s retroactive benefits,
but she includes the $6,000 § 406(a) agency fee in this calculation. The Court does not, however,
consider the § 406(a) fee when calculating the percentage of Plaintiff’s retroactive benefits
represented by the requested § 406(b) fees. Clark, 529 F.3d at 1218.
2

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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 25-1. Plaintiff agreed to
pay attorney’s fees not to exceed 25 percent of the back benefits awarded. Here, the requested
fee award is approximately nine percent and is well under the statutory maximum and the
amount agreed upon in Plaintiff’s contingency fee agreement.
The Court next considers the appropriate factors to determine whether a downward
adjustment is necessary in this case. Plaintiff’s counsel achieved good results for Plaintiff (a
stipulated remand for further proceedings), the representation of Plaintiff was professional, and
there was no meaningful delay attributable to Plaintiff’s counsel.3 The fee award also will not
result in a windfall to Plaintiff’s counsel. Plaintiff’s counsel worked 15.7 hours, and thus the
effective hourly rate is approximately $220.16. The Court notes that effective hourly rates
exceeding $1,000 have been approved in this district. See, e.g., Quinnin v. Comm’r, 2013 WL
3

Plaintiff’s counsel requested and received a two-week extension of time to file
Plaintiff’s opening brief, but that delay is not significant.
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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). The Court finds that no downward adjustment is necessary in this case.
CONCLUSION
Plaintiff’s counsel’s motion for attorney fees pursuant to 42 U.S.C. § 406(b) (ECF 25) is
GRANTED. Plaintiff’s counsel is entitled to attorney’s fees in the amount of $3,456.45. The
Commissioner is directed to issue Plaintiff’s attorney a section 406(b) check in the amount of
$3,456.45, less any applicable administrative assessment as allowed by statute. Upon receipt of
the 406(b) check, Plaintiff’s counsel shall refund to Plaintiff the $3,071.51 previously received
by Plaintiff’s counsel under the EAJA.
IT IS SO ORDERED.
DATED this 15th day of January, 2019.

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

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