Manzo v. Social Security Administration, No. 3:2010cv01062 - Document 30 (D. Or. 2012)

Court Description: OPINION & ORDER: Plaintiff's unopposed motion for attorney fees pursuant to 42 U.S.C. § 406(b) (doc. # 27 ) is GRANTED. Plaintiff's counsel is to be awarded $8,462.00, less the EAJA attorney fees of $5,275.31, for a net award of $3,186.69 to be paid from Plaintiff's past-due benefits. See 3-page opinion & order attached. Signed on 8/14/2012 by Judge Marco A. Hernandez. (mr)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION JEANIE DEHART MANZO, Civil No. 10-cv-1062-HZ Plaintiff, OPINION & ORDER vs. COMMISSIONER of Social Security, Defendant. Tim D. Wilborn WILBORN LAW OFFICE, P.C. Tim Wilborn, Attorney at Law P.O. Box 2768 Oregon City, OR 97045 Attorney for Plaintiff Richard A. Morris SOCIAL SECURITY ADMINISTRATION Office of the General Counsel 701 Fifth Avenue, Suite 2900 M/S 901 Seattle, WA 98104-7075 PAGE 1 - OPINION AND ORDER Adrian L. Brown U.S. ATTORNEY S OFFICE District of Oregon 1000 S.W. Third Ave., Suite 600 Portland, OR 97204 Attorneys for Defendant HERNANDEZ, District Judge: Now before me is an unopposed motion for attorney fees (doc. #27) filed by Jeanie Dehart Manzo ( Plaintiff ). Plaintiff s motion seeks an award under the Social Security Act, 42 U.S.C. § 406(b), for attorney fees in the amount of $8,462.00. STANDARD 42 U.S.C. § 406 provides, in pertinent part, as follows: Whenever a court renders a judgment favorable to a claimant under this subchapter who was represented before the court by an attorney, the court 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 . . . . 42 U.S.C. § 406(b)(1)(A). The amount awarded is reduced by the amount of attorney fees already awarded under the Equal Access to Justice Act ( EAJA ). Gisbrecht v. Barnhart, 535 U.S. 789, 796 (2002). DISCUSSION In determining a § 406(b) fee request, the court must start with the amount agreed upon by the claimant and her attorney, evaluating only whether that amount should be reduced for one of three reasons: (1) because the attorney provided substandard representation, (2) because the attorney . . . engaged in dilatory conduct in order to increase the accrued amount of past-due benefits, or (3) because the benefits are large in comparison to the amount of time counsel PAGE 2 - OPINION AND ORDER spent on the case. Crawford v. Astrue, 586 F.3d 1142, 1148-49 & n.7 (9th Cir. 2009) (en banc) (quoting Gisbrecht, 535 U.S. at 808). Here, the terms of the contingent-fee agreement between Plaintiff and her attorney, Tim Wilborn ( Wilborn ), are within the statutory limits of 42 U.S.C. § 406. In addition, there is no indication that Plaintiff s counsel was either ineffective or dilatory. The benefits are also not so large in comparison to the amount of time counsel spent on the case that a reduction of Plaintiff s fee request is justified. Simply stated, pursuant to the factors enunciated in Crawford, there are no grounds for reducing the contingent fee arrangement between Plaintiff and her counsel under the circumstances here. Accordingly, Plaintiff is entitled to $3,186.69, which amounts to 25% of her stated retroactive benefits of $33,848 ($8,462.00) less the $5,275.31 in EAJA attorney fees previously awarded by this court on January 10, 2012. CONCLUSION For the foregoing reasons, Plaintiff s unopposed motion for attorney fees pursuant to 42 U.S.C. § 406(b) (doc. #27) is GRANTED. Plaintiff s counsel is to be awarded $8,462.00, less the EAJA attorney fees of $5,275.31, for a net award of $3,186.69 to be paid from Plaintiff s past-due benefits. IT IS SO ORDERED. Dated this day of ______________, 2012. ___________________________ MARCO A. HERNANDEZ United States District Judge PAGE 3 - OPINION AND ORDER

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