Crimmins v. Commissioner Social Security Administration
OPINION AND ORDER. For the reasons stated, the Court GRANTS Plaintiff's motion for attorney's fees under § 406(b) (ECF No. 36 ), and awards Plaintiff's attorney § 406(b) fees in the gross amount of $15,959.25 . Plaintiff's attorney must offset or deduct her EAJA fee award ($14,084.44) from her § 406(b) award of $15,959.25. Thus, Plaintiff's attorney is entitled to receive $1,874.81 in § 406(b) fees. The Court directs t he Commissioner to issue Plaintiff's attorney a § 406(b) check from the withheld benefits in the amount of $1,874.81, less any applicable administrative assessment as allowed by statute. IT IS SO ORDERED. Signed on 11/15/2023 by Magistrate Judge Stacie F. Beckerman. (gw)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
DOLLENE C., 1
Case No. 3:22-cv-00352-SB
OPINION AND ORDER
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
BECKERMAN, U.S. Magistrate Judge.
This matter comes before the Court on Dollene C.’s (“Plaintiff”) motion for attorney’s
fees under 42 U.S.C. § 406(b). 2 The parties have consented to the jurisdiction of a magistrate
judge under 28 U.S.C. § 636(c). For the reasons explained below, the Court grants Plaintiff’s
In the interest of privacy, this Opinion and Order uses only the first name and the initial
of the last name of the non-governmental party in this case.
The Court refers at times to Plaintiff but notes that in this context, Plaintiff’s attorney is
the real party in interest. See Lane v. Saul, 831 F. App’x 845, 846 (9th Cir. 2020) (noting that the
claimant’s “attorney and real party in interest” appealed the district court’s order for fees under
PAGE 1 – OPINION AND ORDER
On March 4, 2022, Plaintiff filed this appeal challenging the Commissioner of Social
Security’s (“Commissioner”) denial of her application for Disability Insurance Benefits under
Title II of the Social Security Act. (ECF No. 1.) In an Opinion and Order dated July 12, 2023, the
Court reversed this Commissioner’s decision and remanded for an award of benefits. (ECF No.
On September 29, 2023, the Court granted Plaintiff’s unopposed motion for $14,084.44
in attorney’s fees under the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412. (ECF No.
32.) On October 26, 2023, Plaintiff filed the present motion for attorney’s fees under § 406(b).
(ECF No. 36.)
“For judicial proceedings, § 406(b)(1) provides that a federal court that ‘renders a
judgment favorable to a claimant . . . who was represented before the court by an attorney’ may
grant the attorney ‘a reasonable fee for [that] representation[.]’” Parrish v. Comm’r of Soc. Sec.
Admin., 698 F.3d 1215, 1217 (9th Cir. 2012) (quoting 42 U.S.C. § 406(b)(1)(A)). If the court
grants a fee request under § 406(b), the “award is paid directly out of the claimant’s benefits,”
and must “not [be] in excess of [twenty-five] percent of the total of the past-due benefits to
which the claimant is entitled by reason of [the court’s] judgment.’” Id. (quoting 42 U.S.C.
Notably, “[b]ecause attorneys who accepted an award under [the EAJA] in excess of the
§ 406(b)(1) cap could be subject to criminal sanctions under § 406(b)(2), Congress amended the
EAJA in 1985 to add a savings provision that allows attorneys to receive fees under both
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§ 406(b) and [the EAJA].” 3 Id. at 1218. The savings provision seeks to “maximize the award of
past-due benefits to claimants and . . . avoid giving double compensation to attorneys, [and
therefore] requires a lawyer to offset any fees received under § 406(b) with any award that the
attorney receives under [the EAJA] if the two were for the ‘same work.’” Id. (citing Gisbrecht v.
Barnhart, 535 U.S. 789, 796 (2002)). Although the savings provision states that “the claimant’s
attorney [must refund] to the claimant the amount of the smaller fee,” id. (simplified), the Ninth
Circuit has held that a district court may offset or deduct EAJA fee awards from the § 406(b)
Indeed, in Parrish, the Ninth Circuit assessed whether the claimant’s attorney
“‘receive[d] fees for the same work’ under the EAJA and SSA for the two appeals he undertook
for [the claimant].” Id. at 1217. During the first appeal, the district court remanded the case for
further proceedings and awarded the attorney “$5,000 in attorneys’ fees pursuant to the EAJA.”
Id. at 1218-19. After an unfavorable agency decision on remand, the same attorney represented
the claimant during a second appeal. Id. at 1219. After remanding the case for an award of
benefits, the district court awarded the attorney “an additional $6,575 [in EAJA fees], bringing
the total award to $11,575 in EAJA fees.” Id. The attorney later sought “$9,059.89 in [§ 406(b)]
fees, equating to the statutory maximum of [twenty-five] percent of the past-due benefit
award[.]” Id. The attorney “conceded that the savings provision required the [district] court to
deduct the second EAJA award of $6,575 from his § 406(b) fees and thus sought payment of
only $2,484.89.” Id. The district court disagreed and instead “held that the savings provision
Unlike § 406(b) fees, which a claimant pays directly out of his benefits, the “EAJA
requires the government to pay the fees and expenses of a ‘prevailing party’ unless the
government’s position was ‘substantially justified.’” Parrish, 698 F.3d at 1218 (quoting 28
U.S.C. § 2412(d)(1)(A)). Courts award EAJA fees at “intermediate stage[s] in a Social Security
PAGE 3 – OPINION AND ORDER
required it to deduct the first EAJA award of $5,000, as well as the second award of $6,575, from
the § 406(b) fees.” Id. Given that the combined “EAJA award of $11,575 was greater than the
§ 406(b) award of $9,059.89, the [district] court declined to make any further award to [the
Before the Ninth Circuit, the attorney argued that the district court erred in “deducting”
his first EAJA fee award from his § 406(b) award of twenty-five percent of the claimant’s pastdue benefits because his first EAJA and § 406(b) awards were not for the “same work.” Id. The
Ninth Circuit disagreed and explained that “[u]nder [§ 406(b)’s] plain language, a federal court
may consider an attorney’s representation of the client throughout the case in determining
whether a fee award is reasonable,” and to hold otherwise would mean that “a claimant could
end up paying more than [twenty-five] percent of past-due benefits in federal court attorneys’
fees, a result that would thwart the . . . intent of Congress to prevent attorneys ‘[c]ollecting or
even demanding from the client anything more than the authorized allocation [twenty-five
percent] of past-due benefits[.]’” Id. at 1220 (quoting Gisbrecht, 535 U.S. at 795). The Ninth
Circuit thus held that the district court did not err in offsetting the EAJA awards against the
§ 406(b) award:
We therefore hold that if a court awards attorney fees under [the EAJA]
for the representation of a Social Security claimant on an action for past-due
benefits, and also awards attorney fees under § 406(b)(1) for representation of the
same claimant in connection with the same claim, the claimant’s attorney
‘receives fees for the same work’ under both [the EAJA] and § 406(b)(1) for
purposes of the EAJA savings provision. The district court is well positioned to
implement § 406(b)’s requirements. Where the same attorney represented a
claimant at each stage of judicial review, the court need merely offset all EAJA
awards against the § 406(b) award. But even in circumstances where a claimant
has more than one attorney at different appeals, district courts would have ample
discretion to apportion fees equitably under § 406(b)(1), and apply the offset as
appropriate to those attorneys who received both § 406(b)(1) and EAJA awards.
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We now apply these principles here. [The attorney] represented [the
claimant] in all proceedings before the district court in connection with her claim,
and the district court awarded [the attorney twenty-five] percent of [the
claimant’s] past-due benefits award as a reasonable fee for that representation.
[The attorney] received the $5,000 award under [the EAJA] for his representation
of [the claimant] on her first appeal. Accordingly, the $5,000 award under EAJA
was for the ‘same work’ as the work for which [the attorney] received the
§ 406(b)(1) award, and therefore the district court correctly offset the $5,000 from
the [twenty-five] percent award.
Id. at 1221 (emphasis added).
Section 406(b) provides that “the fee must not exceed [twenty-five percent] of the past-
due benefits awarded,” but it “does not specify how courts should determine whether a requested
fee is reasonable.” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (en banc) (citing
Gisbrecht, 535 U.S. at 800). Addressing this issue, the Supreme Court “held that a district court
charged with determining a reasonable fee award under § 406(b)(1)(A) must respect ‘the
primacy of lawful attorney-client fee agreements,’ . . . ‘looking first to the contingent-fee
agreement, then testing it for reasonableness[.]’” Id. (quoting Gisbrecht, 535 U.S. at 793, 808).
The Supreme Court “noted that courts that had followed this model had ‘appropriately reduced
the attorney’s recovery based on the character of the representation and the results the
representative achieved.’” Id. (quoting Gisbrecht, 535 U.S. at 808). Consistent with this
approach, “[a] fee resulting from a contingent-fee agreement is unreasonable, and thus subject to
reduction by the court, if the attorney provided substandard representation or engaged in dilatory
conduct in order to increase the accrued amount of past-due benefits, or if the ‘benefits are large
in comparison to the amount of time counsel spent on the case.’” Id. (quoting Gisbrecht, 535
If the district court determines that the fee request is unreasonable and subject to
reduction, “it must provide ‘a concise but clear explanation of its reasons for the fee award.’” Id.
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at 1152 (quoting Hensley v. Eckerhart, 461 U.S. 424, 437 (1983)); Laboy v. Colvin, 631 F.
App’x 468, 469 (9th Cir. 2016). Notably, “where the district court awards a substantially reduced
fee, it must ‘articulate its reasoning with more specificity[.]’” Crawford, 586 F.3d at 1152
(quoting Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008)); see also Moreno,
534 F.3d at 1112 (“[T]he district court can impose a small reduction, no greater than [ten]
percent—a ‘haircut’—based on its exercise of discretion and without a more specific
explanation.”); Davis v. Colvin, No. 3:09-cv-00649-AC, 2015 WL 268950, at *3 (D. Or. Jan. 20,
2015) (“[T]he court will exercise its discretion and apply a ten percent ‘haircut’ to [the § 406(b)]
Plaintiff’s attorney seeks $15,959.25 in § 406(b) fees, and “bears the burden of
establishing that the fee sought is reasonable.” Crawford, 586 F.3d at 1148 (citing Gisbrecht, 535
U.S. at 807). As explained below, Plaintiff’s attorney has established that the fee sought is
In accordance with Gisbrecht and Crawford, the Court begins its § 406(b) fee
determination by looking first to the contingent-fee agreement. “Contingent-fee . . . agreements
providing for fees of [twenty-five percent] of past-due benefits have . . . become the ‘most
common fee arrangement between attorneys and Social Security claimants.’” Crawford, 586
F.3d at 1147-48 (quoting Gisbrecht, 535 U.S. at 800). Consistent with this common practice in
Social Security cases, Plaintiff’s contingent-fee agreement specifies that her attorney’s fees
cannot exceed twenty-five percent of any past-due benefits award. (ECF No. 37-1 at 1-2.) The
Social Security Administration’s (“SSA”) Notice of Award reflects that the SSA awarded
Plaintiff $63,837.00 in past-due benefits, and withheld twenty-five percent ($15,959.25) of those
benefits. (See ECF No. 37-2 at 3, “Your representative may ask the court to approve a fee no
PAGE 6 – OPINION AND ORDER
larger than [twenty-five] percent of past due benefits. . . . For this reason, we are withholding
$15,959.25.”). Accordingly, it is evident that the requested § 406(b) fee is within the statutory
Having looked first to the contingent-fee agreement, the Court must now “test it for
reasonableness.” Crawford, 586 F.3d at 1148 (quoting Gisbrecht, 535 U.S. at 808). As the Ninth
Circuit has explained, “[a]lthough Gisbrecht did not provide a definitive list of factors that
should be considered in determining whether a fee is reasonable or how those factors should be
weighed, the [Supreme] Court directed the lower courts to consider ‘the character of the
representation and the results the representative achieved.’” Id. at 1151 (quoting Gisbrecht, 535
U.S. at 808). Thus, a “court may properly reduce the fee for substandard performance, delay, or
benefits that are not in proportion to the time spent on the case.” Id. (citing Gisbrecht, 535 U.S.
A court should also “look at the complexity and risk involved in the specific case at issue
to determine how much risk the [attorney] assumed in taking the case.” Id. at 1153. In Crawford,
for example, the Ninth Circuit held that the requested fees were reasonable and noted that the
“attorneys assumed significant risk in accepting the cases, including the risk that no benefits
would be awarded or that there would be a long court or administrative delay in resolving the
cases.” Id. Relevant to the issue of complexity, the Ninth Circuit has stated that “the term
‘routine’ is a bit of a misnomer [in the] social security disability [context because the cases] are
often highly fact-intensive and require careful review of the administrative record, including
complex medical evidence.” Costa v. Comm’r of Soc. Sec. Admin., 690 F.3d 1132, 1134 n.1 (9th
Cir. 2012) (per curiam).
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Considering the factors described above, the Court finds that the fees requested are
reasonable and no downward adjustment is necessary here. Plaintiff’s attorney achieved an
excellent result (a reversal and remand for benefits). See Wallace v. Kijakazi, No. 3:20-cv01189-SI, 2023 WL 3605603, at *2 (D. Or. Apr. 5, 2023) (finding that “a stipulated remand for
further proceedings” was a “good result”). There was also no delay attributable to Plaintiff’s
attorney (she received only two short extensions of time), and her representation of Plaintiff was
Furthermore, the fees requested ($15,959.25) would not result in a windfall to Plaintiff’s
attorney, who (1) assumed the risk of long delays and that the SSA would not award benefits to
Plaintiff, and (2) spent 59.4 hours on this appeal (ECF No. 36 at 3 n.2), which produces an
effective hourly rate of $268.67 (i.e., $15,959.25 divided by 59.4).4 See Wascovich v. Comm’r of
Soc. Sec., No. 2:20-cv-01862, 2023 WL 1931020, at *2-3 (E.D. Cal. Feb. 10, 2023) (considering
the hours counsel spent on both appeals in calculating the effective hourly rate, stating that even
if the court was limited to the hours from one appeal, the effectively hourly rate of $1,008.00
would still not result in a windfall given Crawford’s guidance, and noting that courts have
approved effective hourly rates in excess of $1,400.00); see also Wallace, 2023 WL 3605603, at
*2 (noting that “effective hourly rates exceeding $1,000 have been approved in this district”).
In conclusion, the Court finds that the fees requested are reasonable and grants Plaintiff’s
Plaintiff’s counsel voluntarily reduced her billed time to 59.4 hours. (ECF No. 36 at 3
PAGE 8 – OPINION AND ORDER
For the reasons stated, the Court GRANTS Plaintiff’s motion for attorney’s fees under
§ 406(b) (ECF No. 36), and awards Plaintiff’s attorney § 406(b) fees in the gross amount of
$15,959.25. Plaintiff’s attorney must offset or deduct her EAJA fee award ($14,084.44) from her
§ 406(b) award of $15,959.25. Thus, Plaintiff’s attorney is entitled to receive $1,874.81 in
§ 406(b) fees. The Court directs the Commissioner to issue Plaintiff’s attorney a § 406(b) check
from the withheld benefits in the amount of $1,874.81, less any applicable administrative
assessment as allowed by statute.
IT IS SO ORDERED.
DATED this 15th day of November, 2023.
HON. STACIE F. BECKERMAN
United States Magistrate Judge
PAGE 9 – OPINION AND ORDER
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