Chase v. Commissioner Social Security, No. 3:2010cv01063 - Document 53 (D. Or. 2013)

Court Description: OPINION & ORDER: The motion for attorney fees pursuant to § 406(b) 46 filed by Wilborn is GRANTED. Wilborn is hereby awarded $45,637.25, less total EAJA fees of $14,197.71, for a net award of $31,439.54 to be paid from Plaintiff's past-due benefits. See 4-page opinion & order attached. Signed on 5/14/2013 by Judge Marco A. Hernandez. (mr)

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION DALE CHASE, Plaintiff, No. 3:10-cv-01063-HZ OPINION & ORDER v. COMMISSIONER OF SOCIAL SECURITY, Defendant. Tim D. Wilborn WILBORN LAW OFFICE, P.C. P.O. Box 370578 Las Vegas, NV 89137 Attorney for Plaintiff Adrian L. Brown U.S. ATTORNEY'S OFFICE District of Oregon 1000 S.W. Third Ave., Suite 600 Portland, OR 97204 Daphne Banay 1 - OPINION & ORDER SOCIAL SECURITY ADMINISTRATION 701 Fifth Avenue, Suite #2900 M/S 901 Seattle, WA 98104-7075 Attorneys for Defendant HERNANDEZ, District Judge: Now before me is an unopposed motion for attorney fees (doc. #46) filed by the attorney for Dale Chase, Tim Wilborn. Wilborn seeks an award under the Social Security Act, 42 U.S.C. § 406(b), for attorney fees in the amount of $45,637.25. For the reasons that follow, Plaintiff s motion is GRANTED. STANDARD Section 406(b) 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 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 2 - OPINION & ORDER in comparison to the amount of time counsel 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 Wilborn are within the statutory limits of § 406. The $45,637.25 in attorney fees Wilborn seeks amounts to 25% of the retroactive benefits awarded to Plaintiff. See Mem. in Supp., p. 10 (doc. #47). In addition, there is no indication that Plaintiff s counsel was either ineffective or dilatory. Furthermore, the ratio of the number of hours worked by Wilborn and the amount of fees requested amount to an effective hourly rate of $326.10 ($45,637.25 ÷ 139.95 hours = $326.10 per hour). 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. Pursuant to the factors enunciated in Crawford, there are no grounds for reducing the contingent fee arrangement between Plaintiff and Wilborn. Accordingly, Wilborn is entitled to an award of $45,637.25, less total EAJA fees of $14,197.71, for a net award of $31,439.54 to be paid from Plaintiff s past-due benefits. /// /// /// /// /// /// 3 - OPINION & ORDER CONCLUSION For the foregoing reasons, the motion for attorney fees pursuant to § 406(b) (doc. #46) filed by Wilborn is GRANTED. Wilborn is hereby awarded $45,637.25, less total EAJA fees of $14,197.71, for a net award of $31,439.54 to be paid from Plaintiff s pastdue benefits. IT IS SO ORDERED. Dated this day of ____________, 2013. MARCO A. HERNANDEZ United States District Judge 4 - OPINION & ORDER

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