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SEPULVEDA v. SECRETARY OF THE HHS OF THE UNITED ST

UNITED STATES DISTRICT COURT, EASTERN DISTRICT NEW YORK.


October 18, 1985.

Silvio SEPULVEDA, Plaintiff,
v.
SECRETARY OF the DEPARTMENT OF HEALTH AND HUMAN SERVICES OF the UNITED STATES, Defendant.

The opinion of the court was delivered by: GLASSER

MEMORANDUM AND ORDER

GLASSER, District Judge:

 Following a remand by this Court, the plaintiff in this case was determined to be disabled, and therefore eligible to receive both Title II and Supplementary Income ("SSI") benefits. As a result of this determination, plaintiff is also entitled to retroactive benefits dating from the onset of his disability in 1981. In accordance with 42 U.S.C. § 406(b)(1) (1982), *fn1" plaintiff's attorney moves for an order directing the Secretary of Health and Human Services (the "Secretary") to withhold 25% of plaintiff's retroactive Title II benefits in order that some or all of these funds will be available to be awarded as attorney's fees. The Secretary opposes this motion, contending that plaintiff's attorney is entitled to receive 25% of the amount of Title II benefits plaintiff will receive as diminished by the operation of 42 U.S.C. § 1320a-6(a). *fn2" Because adopting the Secretary's view would contravene the purpose of § 406, and because there is no evidence that Congress intended such a result in enacting § 1320a-6, the motion will be granted.

 In Gallo v. Heckler, 600 F. Supp. 1513 (E.D.N.Y.1985), this Court found that in determining "the actual amount of money to be paid to the plaintiff," retroactive SSI benefits should be calculated before retroactive Title II benefits. 600 F. Supp. at 1518. The Court made clear that such a formula served the purpose of § 1320a-6 by avoiding a windfall of benefits to the plaintiff. The Court also made clear that the calculation of attorney's fees was "not a concern" in the case before it. Id. at 1518 & n. 8. Now faced with the question left open in Gallo, this Court finds that § 1320a-6 should not be considered in calculating the amount of attorney's fees available under § 406. Accord, Wheeler v. Heckler, 607 F. Supp. 646 (D.N.J.1985); Motley v. Heckler, 605 F. Supp. 88 (W.D.Va.1985); Carlisi v. Secretary of Health and Human Services, 583 F. Supp. 135 (E.D.Mich.1984).

 This result is in accord with the language and purpose of both statutes. Section 1320a-6 makes no mention of attorney's fees. Its purpose, to prevent windfalls to claimants, is in no way advanced by reducing the amount of attorney's fees otherwise available under § 406. On the other hand, § 406 states explicitly that an attorney is entitled to up to "25 percent of the total of the past due benefits to which the claimant is entitled." (Emphasis added.) The purpose of § 406, to encourage the effective representation of social security claimants would be undercut by applying § 1320a-6 to reduce attorney's fees. Moreover, adopting the government's position attributes to Congress an arbitrariness that is in no way supportable. There is simply no reason why a lawyer who represents a client who has received state assistance or who is entitled to SSI benefits as well as Title II benefits, should receive less compensation, for the same amount of work, *fn3" than he or she would receive were the client entitled only to Title II benefits.

 For the reasons stated above, the Secretary of Health and Human Services is directed to withhold 25 percent of plaintiff's retroactive Title II benefits, undiminished by the operation of § 1320a-6, for the purpose of awarding attorney's fees on proper application by plaintiff's attorney.


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