Fintics v. Commissioner Social Security Administration, No. 3:2010cv01352 - Document 42 (D. Or. 2013)

Court Description: OPINION AND ORDER ON MOTION FOR 406(B) FEES: Plaintiff's Unopposed Motion for Attorney Fees under 42 U.S.C. 406(b) 40 is granted in part and denied in part, and a fee of $10,753.52 is awarded, with the sum of $3,018.69, representing EAJA fees already awarded in this case, to be refunded to the plaintiff. Signed on 10/2/13 by Magistrate Judge Dennis J. Hubel. (kb)

Download PDF

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF OREGON 3 PORTLAND DIVISION 4 5 6 7 8 9 CHRISTIAN P. FINTICS, ) ) Plaintiff, ) ) vs. ) ) CAROLYN W. COLVIN1, Commissioner, ) Social Security, ) ) Defendant. ) No. 03:10-cv-01352-HU MEMORANDUM OPINION AND ON MOTION FOR 406(b) FEES 10 ________________________________ 11 12 13 James S. Coon Swanson, Thomas & Coon 820 S.W. Second Ave., Suite 200 Portland, OR 97204 14 Attorney for Plaintiff 15 16 17 18 S. Amanda Marshall United States Attorney Adrian L. Brown Assistant United States Attorney 1000 S.W. Third Avenue, Suite 600 Portland, OR 97204-2904 19 20 21 22 23 David Morado Regional Chief Counsel, Region X, Seattle Keith Simonson Special Assistant United States Attorney Social Security Administration Office of the General Counsel 1301 Young Street, Suite A-702 Dallas, TX 75202 24 Attorneys for Defendant 25 26 27 28 1Carolyn W. Colvin became acting Commissioner of Social Security on February 24, 2013. Therefore, pursuant to Federal Rule of Civil Procedure 25(d), she is automatically substituted for Michael J. Astrue as Defendant in this case. 1 - MEMORANDUM OPINION AND ORDER 1 HUBEL, United States Magistrate Judge: 2 The plaintiff Christian Fintics brought this action for 3 judicial review of the Commissioner s decision denying his 4 applications for Disability Insurance ( DI ) benefits under 5 Title II of the Social Security Act, 42 U.S.C. § 1381 et seq., 6 and Supplemental Security Income ( SSI ) under Title XVI of the 7 Act. 8 several respects, and remanded the case for further proceedings. 9 Dkt. #33. On review, the undersigned found the ALJ had erred in 10 The parties stipulated to a fee payment under the Equal 11 Access to Justice Act, 28 U.S.C. § 2412 (EAJA), in the amount of 12 $3,018.69, and on May 3, 2012, I entered an order granting EAJA 13 fees in that amount. 14 Dkt. #36. The matter now before the court is the plaintiff s unopposed 15 motion for attorneys fees pursuant to 42 U.S.C. § 406(b). 16 #40; 17 provides that an attorney who represents a successful claimant 18 in a Social Security action may be awarded, as part of the 19 judgment, a reasonable fee . . . not in excess of 25 percent 20 of the . . . past-due benefits awarded to the claimant. 21 Gisbrecht v. Barnhart, 535 U.S. 789, 795, 122 S. Ct. 1817, 1822, 22 152 L. Ed. 2d 996 (2002) (quoting 42 U.S.C. § 406(b)(1)(A)). 23 The attorney s fee is payable out of, and not in addition to, 24 the amount of [the] past-due benefits. 25 receive 26 attorney must refund the amount of the smaller 27 claimant. 28 receives the largest possible award of benefits. see Dkt. fees #41, under Memorandum both EAJA in and Id. (citation omitted). 2 - MEMORANDUM OPINION AND ORDER Support. Id. section Section Dkt. 406(b) An attorney may 406(b), but the fee to the This ensures the claimant Id. 1 The Gisbrecht Court observed that contingent fee contracts 2 are the most common fee arrangement between attorneys and 3 Social Security claimants. 4 1824 5 contracting for an unreasonably 6 section 406(b) to limit the attorney s fee to 25 percent of the 7 past-due benefits. 8 (discussing the legislative history behind section 406(b)). 9 However, the statute does not mandate that an attorney receive (citation of the To prevent an attorney from large fee, Congress enacted Id., 535 U.S. at 805, 122 S. Ct. at 1826-27 10 25 11 [w]ithin the 25 percent boundary, . . . the attorney for the 12 successful claimant must show that the fee sought is reasonable 13 for the services rendered. 14 1828. 15 contingent fee agreement between the attorney and the claimant, 16 the court then must test the fee arrangement for reasonableness. 17 Crawford v. Astrue, 586 F.3d 1142, 1149 (9th Cir. 2009) (citing 18 Gisbrecht, 535 U.S. at 808, 122 S. Ct. at 1828). 19 percent omitted). Id., 535 U.S. at 800, 122 S. Ct. at claimant s past-due benefits. Rather, Id., 535 U.S. at 807, 122 S. Ct. at Thus, although the district court must look first to the The amount of the fee may be reduced based on the character 20 of the representation and the results the representative 21 achieved. 22 (citations omitted). Thus, for example, a reduced fee would be 23 in order if the attorney provided substandard representation or 24 engaged in dilatory conduct in order to increase the accrued 25 amount of past-due benefits, or if the benefits are large in 26 comparison to the amount of time counsel spent on the case. 27 Crawford, 586 F.3d at 1148 (quoting Gisbrecht, supra). Gisbrecht, 535 U.S. at 808, 122 S. Ct. at 1828 28 3 - MEMORANDUM OPINION AND ORDER The 1 attorney ultimately bears the burden of establishing that the 2 fee sought is reasonable. 3 Id. Routine rubber-stamping of the statutory maximum allowable 4 fee is disfavored in these cases. 5 of Appeals observed over forty years ago, 6 As the Fourth Circuit Court [J]udges should constantly remind themselves that, while the lawyer is entitled to a reasonable compensation for the services rendered by him in the judicial proceeding, these benefits are provided for the support and maintenance of the claimant and his [or her] dependents and not for the enrichment of members of the bar. Routine approval of the statutory maximum allowable fee should be avoided in all cases. In a great majority of the cases, perhaps, a reasonable fee will be much less than the statutory maximum. The statute directs a determination and allowance of a reasonable fee and the courts are responsible under the [Social Security] Act for seeing that unreasonably large fees in these Social Security cases are not charged or collected by lawyers. 7 8 9 10 11 12 13 14 15 16 Redden v. Celebrezze, 370 F.2d 373, 376 (4th Cir. 1966) 17 In the present case, the fee agreement between the plaintiff 18 and his counsel provides for a fee equal to 25 percent of past19 due benefits. See Dkt. #41-5, ¶ 3(D). Counsel s efforts 20 resulted in an award of $63,256 in past-due benefits, plus 21 ongoing monthly benefits until Fintics reaches retirement age or 22 no longer is disabled. Dkt. #41-2, ECF p. 4; see Dkt. ##41-1, 23 41-2. The contracted-for attorney s fee is based only on the 24 past-due benefits, not any future benefits. Here, the 25 contracted-for fee would be $15,814.25. Id. Fintics s counsel 26 seeks $15,814 in fees in the present motion. After refund of 27 the $3,018.69 fee awarded under EAJA, the requested fee would 28 4 - MEMORANDUM OPINION AND ORDER 1 result in an out-of-pocket amount for Fintics of $12,795.31, 2 representing 20.2% of his past-due benefits. 3 The time records submitted with the plaintiff s motion indi- 4 cate that attorney James Coon expended 17.3 hours in this case. 5 An expenditure of 17.3 hours is lower than the twenty to forty 6 hour range Judge Michael W. Mosman has found to be a reasonable 7 amount of time to spend on a social security case that does not 8 present particular difficulty. 9 2d 1214, 1215 (D. Or. 2007) (noting some consensus among the Harden v. Comm r, 497 F. Supp. 10 district courts on this point; citing cases). 11 indicated that [a]bsent unusual circumstances or complexity, . 12 . . this range provides an accurate framework for measuring 13 whether the amount of time counsel spent is reasonable. 14 In the present case, the administrative record was 1,407 pages 15 long. The plaintiff s opening brief was ten pages long, and 16 raised four 17 applicable law related to the ALJ s evaluation of the evidence. 18 After review of the Commissioner s twenty-eight-page brief, the 19 plaintiff filed an eight-page reply. The attorneys time records 20 indicate the time expended by counsel in this case was quite 21 reasonable, and the court so finds. 22 issues requiring analysis of Judge Mosman the evidence Id. and A fee of $15,814 for 17.3 hours of work would result in an 23 effective hourly rate of $914.10. 24 indicates his fee works out to $714 per hour. 25 In arguing the requested fee is reasonable, counsel refers to 26 27 28 5 - MEMORANDUM OPINION AND ORDER Counsel inexplicably Dkt. #41, p. 3. 1 the 2012 Oregon State Bar Economic Survey2 ( Survey ), sometimes 2 used 3 reasonable hourly rates for attorney fee awards. 4 the survey indicates that the average hourly rate is $308 for 5 attorneys with over 30 years of experience practicing in other 6 areas 7 (footnote omitted). 8 shows the average hourly billing rate for all attorneys in the 9 Portland area is $308. by judges in this court as a benchmark in determining of private practice in Portland. Counsel states Dkt. #41, p. 2 Counsel misreads the survey, which actually For attorneys with over 30 years 10 experience, the average hourly rate is $340 per hour, with a 11 median rate of $350 per hour. 12 at 33. 13 Compare Survey at 30 with Survey Counsel states available data show a 29.68% chance of 14 recovery in Social 15 argues 16 warranted to make up for the risk of nonpayment in such cases. 17 Dkt. #41, p. 3. 18 hourly rate for all attorneys in the Portland area, arriving at 19 an adjusted rate of $1037.96 per hour. 20 his effective hourly rate in this case (which, as noted above, 21 he miscalculates as $714/hour) is well below the result of the 22 contingency calculation[.] a Security cases overall, nationwide. contingency multiplier of 3.37 (100/29.68) He is He applies the multiplier to the $308 average Id. Counsel argues Id. 23 The undersigned has considered virtually identical arguments 24 made by attorneys seeking section 406(b) fees in previous cases, 25 noting this type of analysis does little to assist the court in 26 27 2 28 S e http://www.osbar.org/surveys_research/12EconSurvey.html. 6 - MEMORANDUM OPINION AND ORDER e 1 determining the reasonableness of the contracted-for fee equal 2 to 25% of the claimant s past-due benefits. 3 based on a lodestar approach, which was flatly rejected by the 4 Supreme Court in Gisbrecht. 5 The Crawford court explained that under Gisbrecht, the court s 6 duty to assure the reasonableness of the fee must begin . . . 7 with the fee agreement, and the question is whether the amount 8 need be reduced, not whether the lodestar amount should be 9 enhanced. 10 indicated 11 agreements . . . are the primary means by which fees are 12 determined. 13 at 807, 122 S. Ct. at 1828). See Crawford, 586 F.3d at 1148. Id., 586 F.3d at 1149. that [l]awful This analysis is Indeed, the Crawford court attorney-client contingent fee Id., 586 F.3d at 1150 (quoting Gisbrecht, 535 U.S. 14 The Ninth Circuit has explained, post-Gisbrecht, that [t]he 15 lodestar method under-compensates attorneys for the risk they 16 assume in representing SSDI claimants and ordinarily produces 17 remarkably smaller fees than would be produced by starting with 18 the contingent-fee agreement. 19 lodestar to determine a reasonable fee thus ultimately works to 20 the disadvantage of SSDI claimants who need counsel to recover 21 any past-due benefits at all. 22 Nevertheless, 23 continue to urge the court to rely on the lodestar calculation. 24 The court may consider the lodestar calculation, but only Social A district court s use of the Security Crawford, 586 F.3d at 1149. attorneys in this district 25 as an aid in assessing the reasonableness of the fee. 26 F.3d at 1151 (emphasis in original; citing Gisbrecht, 505 U.S. 27 at 808, 122 S. Ct. 28 reducing a fee at include 1828). Factors to be considered in substandard 7 - MEMORANDUM OPINION AND ORDER Id., 586 performance, delay, or 1 benefits that are not in proportion to the time spent on the 2 case. 3 of factors the court may consider. 4 court directed district courts to look at the complexity and 5 risk involved in the specific case at issue [i.e., not in all 6 Social Security cases nationwide] to determine how much risk the 7 [attorney] assumed in taking the case. 8 1153 (emphasis added). 9 In Id. Importantly, however, this is not a definitive list the present case, For example, the Crawford counsel s Crawford, 586 F.3d at representation of the 10 claimant was not substandard. 11 record and the Commissioner s arguments thoroughly, and prepared 12 eighteen pages of briefing that ultimately carried the day. The 13 court finds no reduction of the fee is warranted based on 14 counsel s representation. 15 engage in dilatory conduct in order to increase the accrued 16 amount 17 required on that basis. 18 Ct. at 1828. of past-due He reviewed the administrative The court also finds counsel did not benefits, so no downward adjustment is See Gisbrecht, 535 U.S. at 808, 122 S. 19 The court next considers whether the benefits are large in 20 comparison to the amount of time counsel spent on the case. 21 Gisbrecht, 535 U.S. at 808, 122 S. Ct. at 1828 (citing Rodriquez 22 v. Bowen, 865 F.2d 739, 747 (6th Cir. 1989), for the proposition 23 that 24 lawyers ). 25 counsel resulted in an award of $63,256 in past-due benefits, 26 plus ongoing monthly benefits until Fintics reaches retirement 27 age or no longer is 28 percentage of Fintics s future benefits that also result from the reviewing The 17.3 court should hours of disabled. 8 - MEMORANDUM OPINION AND ORDER work disallow windfalls performed by for Fintics s Counsel will not receive a 1 counsel s representation. The past-due benefits award of $63,256 2 represents $3,656.42 per hour of attorney s time expended. 3 comparison to the amount of time counsel spent on the case, 4 Fintics s past-due benefit award falls in the upper range when 5 compared to recent similar cases in this court. 6 Province v. Comm r, slip op., 2013 WL 3045568, at *2 (D. Or. 7 June 17, 2013) (Marsh, J.) (32 hours; 8 $980.23/hour3); Town v. Astrue, slip op., 2013 WL 2902633 (D. Or. 9 June 11, 2013) (Hernandez, J) (40.8 hours; $55,353 benefits; 10 $1,356.69/hour); Ali v. Comm r, slip op., 2013 WL 3819867 (D. 11 Or. July 21, 2013) (Clarke, MJ) (7 hours; $48,586 benefits; 12 $6,940.87/hour); Newton v. Colvin, slip op., 2013 WL 3119564 (D. 13 Or. June 18, 2013) (Simon, J) (21.5 hours; $79,352 benefits; 14 $3,690.79/hour); Chase v. Comm r, slip op., 2013 WL 2032265 (D. 15 Or. 16 benefits; $1,304.39/hour); Gilbert v. Astrue, slip op., 2013 WL 17 453457 (D. Or. Feb. 6, 2013) (Hubel, MJ) (39 hours; $35,857.66 18 benefits; $919.43/hour); Kimball v. Astrue, 2012 WL 5879845 (D. 19 Or. Oct. 16, 2012) (Papak, MJ) (46.55 hours; $75,012 benefits; 20 $1,611.43/hour). May 14, 2013) (Hernandez, J) In See, e.g., $31,367.20 benefits; (139.95 hours; $182,549 21 However, in considering the proportionality of the fees 22 requested, the court also factors in the complexity of the case, 23 and counsel s risk of non-payment. As Judge Marsh observed in 24 Province it 2013 WL 3045568, at *2, takes an experienced 25 26 27 28 3For ease of comparison, the court has computed the dollar amount of benefits yielded for each hour of attorney time spent in each case (e.g., $31,367.20 in benefits, divided by 32 hours of attorney time, yields $980.23 per hour). 9 - MEMORANDUM OPINION AND ORDER 1 practitioner and a close examination of the relevant documents 2 and records to effectively identify any insufficiencies in the 3 administrative record. 4 counsel 5 identified by the court, were not novel or complex questions of 6 law 7 straightforward, dealing with issues that are fairly routine in 8 these types of cases. 9 comparatively low number of hours (17.3) counsel was required to raised or on fact. Id. Fintics s The case Nevertheless, the four issues behalf, was and the relatively ALJ s errors simple and The case s simplicity is evidenced by the 10 expend in reviewing the record and briefing the issues. 11 court concludes the requested fee would represent a windfall to 12 the attorney because the benefits are large in comparison to 13 the amount of time counsel spent on the case [and] a downward 14 adjustment is . . . in order. 15 S. Ct. at 1828 (citation omitted); see Watters v. Comm r, slip 16 op., 17 (reaching a similar result where counsels 21.1 hours yielded a 18 past-due benefit award of $68,100.40, or $3,227.51/hour). 19 2013 WL 1386615 (D. Or. The Gisbrecht, 535 U.S. at 808, 122 Apr. 3, 2013) (Haggerty, J) After considering all of the relevant factors, the court 20 finds a 17% fee is reasonable in this case. This will result in 21 a fee of $10,753.52, with $7,734.83 actually coming 22 Fintics s past-due benefits award (i.e., 12.23% of his past-due 23 benefits).4 out of 24 25 26 27 28 4The reduced fee represents an effective hourly rate of $621.59, which is more than twice the $308 average hourly rate for attorneys in the Portland area, and 1.83 times the $340 average hourly rate for attorneys with over 30 years experience. 10 - MEMORANDUM OPINION AND ORDER 1 Accordingly, the plaintiff s counsel s motion for attorney 2 fees pursuant to 42 U.S.C. § 406(b) (Dkt. #41) is granted in 3 part and denied in part, and a fee of $10,753.52 is awarded, 4 with 5 awarded in this case, to be refunded to the plaintiff. 6 7 the sum of $3,018.69, representing EAJA fees already IT IS SO ORDERED. Dated this 2nd day of October, 2013. 8 9 10 /s/ Dennis J. Hubel _____________________________________ Dennis James Hubel Unites States Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 11 - MEMORANDUM OPINION AND ORDER

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.