Swartley v. Commissioner Social Security Administration
ORDER: Order on Attorney Fees 39 . Signed on 6/19/2017 by Judge Malcolm F. Marsh. (ma2)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
Case No. 6:15-cv-00121-MA
ORDER ON ATTORNEY FEES
COMMISSIONER SOCIAL SECURITY
Plaintiff Tina L. Swartley brought this action seeking review of the Commissioner's decision
to deny her application for disability insurance benefits and supplemental security income disability
benefits. In a March 29, 2016 Order, based on the stipulation of the parties, I reversed the
Commissioner's decision and remanded the case pursuant to sentence four of 42 U.S.C. § 405(g) for
further administrative proceedings. On remand, the Commissioner issued a favorable decision
finding plaintiff disabled.
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$5,628.75 in fees in this
matter. Order EAJA Fees, ECF No. 38.
1 - ORDER ON ATTORL'!EY FEES
Plaintiffs attorney, Alan Stuart Graf, now seeks an award of fees pursuant to 42 U.S.C. §
406(b) in the amount of $10,932.00, less the amount already received. Unopposed Mot. Att'y Fees
at 1, ECF No. 30. Defendant has no objection to the request. For the reasons that follow, Plaintiffs
motion is granted.
After entering a judgment in favor of a Social Security claimant who was represented by
counsel, a court "may dete1mine and allow as pa1t 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 offees under
§ 406(b) is paid from a 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.'" Crmiford v. Astrue, 586 F.3d 1142,
1152 (9th Cir. 2009) (en bane) (quoting Gisbrecht, 535 U.S. at 808)). As set forth in Crawford, the
coutt 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 ofpropmtion with the time spent on the case, and (5) the risk assumed by
counsel in accepting the case. Id. at 1151-52.
2 - ORDER ON ATTORNEY FEES
Here, the terms of the contingent-fee agreement between Plaintiff and Attorney Graf are
within the statutory limits of§ 406(b). The $10,932.00 in attorney fees Graf seeks does not exceed
25 percent of the past due benefits awarded to Plaintiff. See Unopposed Mot. Attn'y Fees at 3 & Ex.
1 at 3, ECF No. 25.
I have reviewed the record in the case, the motion, and the suppo1iing 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 Graf was either ineffective or dilat01y, and he achieved a favorable result for Plaintiff.
Furthermore, the amount of fees requested is not out of prop01iion to the work perfo1med by Graf,
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 Graf represents that he has received $5,628.75 in fees previously awarded under
EAJA. Accordingly, the requested fees of$! 0,932.00 under§ 406(b) must be reduced by the EAJA
fees. Therefore, the Commissioner is directed to send Plaintiffs attorney $5,303.25 less any
applicable processing fees as allowed by statute.
3 - ORDER ON ATTORNEY FEES
For these reasons, Plaintiffs Unopposed Motion for Attorney Fees (ECF No. 39) pursuant
to 42 U.S.C. § 406(b) in the amount of$5,303.25 is GRANTED.
IT IS SO ORDERED.
DATED this _j!1 day of JUNE, 2017.
Malcolm F. Marsh
United States District Judge
4 - ORDER ON ATTORNEY FEES
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