IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

TIFF ANY A. WHYSONG, Case No. 1:15-cv-00488-MA 

Plaintiff, ORDER ON ATTORNEY FEES 

v. 

COMMISSIONER SOCIAL SECURITY 

ADMINISTRATION, 

Defendant. 

MARSH, Judge 

Plaintiff Tiffany A. Whysong brought this action seeking review of the Commissioner's 

decision to deny her applications for disability insurance benefits and supplemental security income. 

In a January 5, 2016 Order, I reversed the Commissioner's decision and remanded the case for 

further administrative proceedings. Order for Remand, ECF No. 17. 

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$4,718.94 in fees in this 

matter. Order EAJA Fees, ECF No. 22. 

On remand, Plaintiff was awarded retroactive benefits. Plaintiffs attorney, Tim Wilborn, 

now seeks an award of fees pursuant to 42 U.S.C. § 406(b) in the amount of $12,722.94, less the 

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amounts already received. Defendant has no objection to the request. Mot. Art 'y Fees, ECF No. 23; 

Response, ECF No. 24. For the reasons that follow, Plaintiffs motion is granted. 

STANDARD 

After entering a judgment in favor of a Social Security claimant who was represented by 

counsel, a court "may determine and allow as part 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)(l)(A). An award of fees under 

§ 406(b) is paid from 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."' Crattford v. As true, 5 86 F .3d 1142, 

1152 (9th Cir. 2009) (en bane) (quoting Gisbrecht, 535 U.S. at 808)). As set forth in Crawford, the 

court 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 of proportion with the time spent on the case, and (5) the risk assumed by 

counsel in accepting the case. Id. at 1151-52. 

DISCUSSION 

Here, the terms of the contingent-fee agreement between Plaintiff and Attorney Wilborn are 

within the statutory limits of§ 406(b). The $12,722.94 in attorney fees Wilborn seeks does not 

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exceed 25 percent of the past due benefits awarded to Plaintiff. See Mot.. Att'y Fees at 1 & Ex. 1 at 

2, ECF No. 23. 

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 Crav.ford, I find the requested fees reasonable. There is no indication 

that Attorney Wilborn was either ineffective or dilatory, and he achieved a favorable result for 

Plaintiff. Furthermore, the amount of fees requested is not out of proportion to the work performed 

by Wilborn, 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 Crav.ford, I find that 

Plaintiffs counsel has demonstrated that a 25 percent fee is reasonable for this case. 

Attorney Wilborn represents that he has received $4, 718. 94 in fees previously awarded under 

EAJA. Accordingly, the requested fees of$12,722.94 under§ 406(b) must be reduced by the EAJA 

fees. Therefore, the Commissioner is directed to send Plaintiffs attorney $8,004.00, less any 

applicable processing fees as allowed by statute. 

Ill/ 

/Ill 

Ill/ 

Ill/ 

Ill/ 

Ill/ 

Ill/ 

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CONCLUSION 

For these reasons, Plaintiffs Motion for Attorney Fees (ECF No. 23) pursuant to 42 U.S.C. 

§ 406(b) in the amount of $8,004.00 is GRANTED. 

IT IS SO ORDERED. 

DATED this I~ day of FEBRUARY, 2018. 

~~ -7?11~ Malcolm F. Marsh 

United States District Judge 

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