McNamara v. Commissioner of Social Security Administration
Filing
24
OPINION & ORDER: Wilborn's unopposed motion for attorney fees 20 pursuant to 42 U.S.C. § 406(b) is GRANTED. Accordingly, Wilborn is to be awarded $4,950, less the EAJA award of $2,149.31, for a net award of $2,800.69 to be paid from Plaintiffs past-due benefits. See 4-page opinion & order attached. Signed on 5/14/2013 by Judge Marco A. Hernandez. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
DIANE McNAMARA,
Civil No. 11-cv-00173-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 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
PAGE 1 - OPINION AND ORDER
Leisa A. Wolf
SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, WA 98104
Attorneys for Defendant
HERNANDEZ, District Judge:
Now before me is an unopposed motion for attorney fees (doc. #20) filed by Tim
Wilborn, the attorney for Diane McNamara. Wilborn seeks an award under the Social Security
Act, 42 U.S.C. § 406(b), for attorney fees in the sum of $4,950.
BACKGROUND
This case was filed on February 10, 2011, and pursuant to a stipulated motion for remand,
was remanded for further administrative proceedings. On remand, the Commissioner of Social
Security (“Commissioner”) found Plaintiff disabled. This Court adopted the Commissioner’s
ultimate disability determination on March 24, 2013. On May 2, 2013, this Court granted
Wilborn’s application for attorney fees and costs pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(d), totaling $1,799.31 and $350, respectively.
STANDARD
42 U.S.C. § 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).
///
PAGE 2 - OPINION AND ORDER
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
spent on the case.’” Crawford v. Astrue, 586 F.3d 1142, 1148 (9th Cir. 2009) (quoting Gisbrecht
v. Barnhart, 535 U.S. 789, 808 (2002)). “[A]s an aid to the court’s assessment of the
reasonableness of the fee yielded by the fee agreement, but not as a basis for satellite litigation,
the court may require counsel to provide a record of the hours worked and counsel’s regular
hourly billing charge for noncontingent cases.” Id. (internal quotation marks omitted). The
attorney bears the burden of establishing that the fee sought is reasonable. Id.
Here, the terms of the contingent-fee agreement between Plaintiff and Wilborn are within
the statutory limits of 42 U.S.C. § 406. See Mem. in Supp., p. 11. Nothing in the record shows
that Wilborn provided substandard representation or that Wilborn engaged in dilatory conduct in
order to increase the accrued amount of past-due benefits. Based on the 9.9 hours Wilborn
expended on this case and his total fee request of $4,950, his hourly rate is $500 per hour.
Nothing in the record indicates Wilborn’s hourly fee is unreasonable or that the total sum of
requested attorney fees under the circumstances here are unreasonable.
CONCLUSION
For the foregoing reasons, Wilborn’s unopposed motion for attorney fees pursuant to 42
U.S.C. § 406(b) (doc. #20) is GRANTED. Accordingly, Wilborn is to be awarded $4,950, less
PAGE 3 - OPINION AND ORDER
the EAJA award of $2,149.31, for a net award of $2,800.69 to be paid from Plaintiff’s past-due
benefits.
IT IS SO ORDERED.
Dated this
day of ______________, 2013.
___________________________
MARCO A. HERNANDEZ
United States District Judge
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