Fulsaas v. Commissioner Social Security Administration

Filing 33

ORDER: Declining to Adopt Judge Papak's Findings and Recommendation 31 . Plaintiff's Motion for Attorney Fees 30 is Granted, and Plaintiff's counsel is awarded $7,901 in attorney's fees under 42 U.S.C. & #167; 406(b). Previously, Judge Papak awarded Plaintiff attorney's fees in the amount of $6,966.37 under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. When issuing the section 406(b) check for payment to Plaintiff's attorney, the Commissioner is directed to subtract the amount previously awarded under EAJA and send Plaintiff's attorney the balance of $934.63, less any applicable processing or user fees prescribed by statute. Any amount withheld after all administrative and court attorney's fees are paid should be released to the claimant. Signed on 11/14/18 by Judge Marco A. Hernandez. (gm) (Main Document 33 replaced on 11/15/2018) (eo).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

STEVEN F.,1

No. 3:17-CV-296-PK
Plaintiff,

ORDER

v.
NANCY BERRYHILL,
Defendant.

HERNÁNDEZ, District Judge:
Magistrate Judge Papak issued a Findings and Recommendation [31] on September 17,
2018, in which he recommends the Court grant Plaintiff’s Unopposed Motion for Attorney Fees

1

In the interest of privacy, this order uses only the first name and the initial of the last name of the nongovernmental party or parties in this case.

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per 42 U.S.C. § 406(b) [30] in the amount of $698.74. The matter is now before the Court
pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b).
Because no objections to the Magistrate Judge’s Findings and Recommendation were
timely filed, I am relieved of my obligation to review the record de novo. United States v. ReynaTapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc); see also United States v. Bernhardt, 840
F.2d 1441, 1444 (9th Cir. 1988) (de novo review required only for portions of the Magistrate
Judge’s report to which objections have been made). Having reviewed the legal principles de
novo, I decline to adopt the Magistrate Judge’s Findings and Recommendation.
Plaintiff seeks an award of fees pursuant to 42 U.S.C. § 406(b). Defendant has no
objection to the request. I have reviewed the Findings and Recommendation, in which the
Magistrate Judge assesses the record, 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.
The Magistrate Judge deducted $235.89 from the award of fees on the basis of attorney
attributable delay. I decline to adopt that reasoning. Applying the standards set by Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002), I find the requested fees are reasonable and grant Plaintiff’s
motion in full.
CONCLUSION
Plaintiff’s motion [30] is granted, and Plaintiff’s counsel is awarded $7,901 in attorney’s
fees under 42 U.S.C. § 406(b). Previously, Judge Papak awarded Plaintiff attorney’s fees in the
amount of $6,966.37 under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. When
issuing the section 406(b) check for payment to Plaintiff’s attorney, the Commissioner is directed
to subtract the amount previously awarded under EAJA and send Plaintiff’s attorney the balance

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of $934.63, less any applicable processing or user fees prescribed by statute. Any amount
withheld after all administrative and court attorney’s fees are paid should be released to the
claimant.
IT IS SO ORDERED.

DATED this

day of ___________________, 2018.

MARCO A. HERNÁNDEZ
United States District Judge

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