McMahan v. Commissioner Social Security Administration

Filing 33

ORDER - Plaintiff's counsel's motion for attorney fees pursuant to 42 U.S.C. § 406(b) (ECF 31 ) is GRANTED. Plaintiff's counsel is entitled to $11,807.11 in § 406(b) fees, representing 22 percent of Plaintiff� 39;s retroactive benefits recovery. When issuing the section 406(b) check for payment to Plaintiff's attorney, the Commissioner is directed to subtract the $4,283.01 previously awarded under EAJA send Plaintiff's attorney the balance of $7,524.10, less any applicable administrative assessment as allowed by statute. Signed on 6/2/2017 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

TEANNA D. MCMAHAN,
Plaintiff,

Case No. 6:15-cv-642-SI
ORDER

v.
NANCY A. BERRYHILL,
Commissioner of Social Security,
Defendant.
Michael H. Simon, District Judge.
On June 20, 2016, the Court remanded this case for further proceedings pursuant to the
stipulation of the parties. On July 19, 2016, 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 $4,283.01.1

1

Plaintiff’s motion states that EAJA fees were received in the amount of $4,242.61.
Plaintiff’s counsel confirmed with the Court that this was a typographical error.
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Plaintiff’s counsel now moves for attorney’s fees of $11,807.11, pursuant to 42 U.S.C.
§ 406(b). This figure represents 22 percent of Plaintiff’s retroactive benefits. Plaintiff’s counsel
requests an additional payment from Plaintiff of $7,524.10,2 which represents the requested
$11,807.11 less the EAJA fee of $4,283.01 already received. Although Defendant does not
object to the proposed award, this 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
2

The amount of fees requested by Plaintiff is adjusted to reflect the accurate amount of
EAJA fees received.
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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
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. 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 greater than 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 significant 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 22.85 hours on the case. The effective
hourly rate for the requested fee is, therefore, approximately $516.72, 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
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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).
CONCLUSION
Plaintiff’s counsel’s motion for attorney fees pursuant to 42 U.S.C. § 406(b) (ECF 31) is
GRANTED. Plaintiff’s counsel is entitled to $11,807.11 in § 406(b) fees, representing 22 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 $4,283.01 previously awarded
under EAJA send Plaintiff’s attorney the balance of $7,524.10, less any applicable administrative
assessment as allowed by statute.
IT IS SO ORDERED.
DATED this 2nd day of June, 2017.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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