McCoy v. Commissioner Social Security Administration

Filing 37

ORDER - Plaintiff's counsel's motion for attorney fees pursuant to 42 U.S.C. § 406(b) (ECF 36) is GRANTED. Plaintiff's counsel is entitled to $15,088.50 in § 406(b) fees, representing 25 percent of Plaintiff' ;s retroactive benefits recovery. When issuing the section 406(b) check for payment to Plaintiff's attorney, the Commissioner is directed to subtract the $11,395.10 previously paid to Plaintiff's counsel and send Plaintiff's attorney the balance of $3,693.40, less any applicable administrative assessment as allowed by statute. Signed on 1/4/2017 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KELLY L. MCCOY,
Plaintiff,

Case No. 6:13-cv-1616-SI
ORDER

v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.

On September 26, 2014, the Court granted the parties’ stipulated motion to remand this
matter for further proceedings. On December 16, 2014, 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 $5,486.10.
Plaintiff’s counsel now moves for attorney’s fees of $15,088.50 pursuant to 42 U.S.C.
§ 406(b). ECF 36. This figure represents 25 percent of Plaintiff’s retroactive benefits, which for
purposes of calculating attorney’s fees totaled $60,354.1 Plaintiff’s counsel requests an additional
payment from Plaintiff of $3,693.40, which represents the requested $15,088.50 less the EAJA
1

Plaintiff received additional past due benefits for the months including when her
favorable decision was reached and thereafter, but those months are not considered when
calculating an award of attorney’s fees under § 406(b). See 20 C.F.R. § 416.1503.

ORDER – Page 1

fees of $5,486.10 and agency award of $5,909 already received. Although Defendant does not
object to 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
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
ORDER – Page 2

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 36 at 13-15. 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
counsel. Plaintiff’s counsel spent approximately 28.95 hours on the case. The effective hourly
rate for the requested fee is, therefore, approximately $521.19, 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).

ORDER – Page 3

CONCLUSION
Plaintiff’s counsel’s motion for attorney fees pursuant to 42 U.S.C. § 406(b) (ECF 36) is
GRANTED. Plaintiff’s counsel is entitled to $15,088.50 in § 406(b) fees, representing 25 percent
of Plaintiff’s retroactive benefits recovery. When issuing the section 406(b) check for payment to
Plaintiff’s attorney, the Commissioner is directed to subtract the $11,395.10 previously paid to
Plaintiff’s counsel and send Plaintiff’s attorney the balance of $3,693.40, less any applicable
administrative assessment as allowed by statute.
IT IS SO ORDERED.
DATED this 4th day of January, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

ORDER – Page 4