IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

TINAL. SWARTLEY 

Plaintiff, 

v. 

COMMISSIONER SOCIAL SECURITY 

ADMINISTRATION, 

Defendant. 

MARSH, Judge 

Case No. 6:15-cv-00121-MA 

ORDER ON ATTORNEY FEES 

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. 

STANDARD 

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 
DISCUSSION 

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. 

/Ill 

/Ill 

Ill/ 

Ill/ 

3 - ORDER ON ATTORNEY FEES 
CONCLUSION 

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. 

7?1~$~t~ Malcolm F. Marsh 

United States District Judge 

4 - ORDER ON ATTORNEY FEES