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Danielle Macmillan v. Michael J. Astrue

April 23, 2012




Plaintiff Danielle MacMillan ("Plaintiff"), a resident of Mechanicville, New York, commenced this action in the Northern District of New York on September 17, 2007, seeking judicial review of the Commissioner of Social Security's denial of Plaintiff's claim for disability and disability insurance benefits. See Dkt. No. 1 ("Complaint"). In a Report-Recommendation issued November 17, 2009, the Honorable Victor E. Bianchini, United States Magistrate Judge, recommended that the Court deny Defendant's Motion for judgment on the pleadings and remand Plaintiff's Complaint for reconsideration. See Dkt. No. 20 ("Report-Recommendation"). By Decision and Order issued December 7, 2009, the Court approved and adopted Judge Bianchini's Report-Recommendation in its entirety, thereby remanding Plaintiff's action for further proceedings at the agency level. Dkt. No. 22 ("December Order") at 2.

Presently before the Court is Plaintiff's Motion for attorney's fees, filed on July 28, 2011. Dkt. No. 30 ("Motion"). Plaintiff requests that the Court authorize "an award of attorney fees of $13,825.50 to be paid to her attorney" pursuant to 42 U.S.C. § 406. See Mot. at 2. For the reasons stated below, Plaintiff's Motion is granted, with the requirement that Plaintiff's attorney refund $4,608.69 of this award to Plaintiff.


Plaintiff commenced this action on September 17, 2007, seeking judicial review of the denial of her claim for social security disability insurance benefits by the Social Security Administration. See Compl. Plaintiff's attorney, Stephen J. Mastaitis, received a net payment in the amount of $4,867.00 for services rendered at the Administrative level. Mot. at 10. Additionally, on January 26, 2010, both parties stipulated and agreed to an award of $4,608.69 to be paid to Plaintiff's attorney pursuant to the Equal Access to Justice Act ("EAJA"). See Dkt. No. 27 ("Consent Order") at 1; 28 U.S.C. § 2412(d).

After the matter was remanded, and upon reconsideration by an Administrative Law Judge ("ALJ"), Plaintiff was awarded retroactive social security disability benefits dating back to March 2004 in the amount of $55,302.00. Mot. at 10. On July 28, 2011, Plaintiff's attorney filed the present Motion, along with a petition signed by Plaintiff, seeking approval of the requested fee. See Mot.; Dkt. No. 30-2 at 1 ("Fee Petition"). Plaintiff and her attorney seek to recover fees equal to 25% of past-due benefits awarded, or $13,825.50, in accordance with their fee agreement signed on December 12, 2006. See Mot. at 3-4; see also Dkt. No. 30-2 at 2-3 ("Fee Agreement"). Defendant has not opposed Plaintiff's Motion.


The EAJA provides, in relevant part, that:

[A] court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action . . . including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. § 2412(d)(1)(A). Furthermore, under Section 406(b)(1)(A) of the Social Security Act ("SSA"), an award for attorney's fees is proper whenever the following three elements are met: "(1) a judgment in favor of the claimant; (2) the fee must be awarded as part of the court's judgment; and (3) the fee must not exceed twenty-five percent of the total amount of past-due benefits rewarded to the claimant." Kazanjian v. Astrue, No. 09 civ. 3678, 2011 WL 2847439, at *1 (E.D.N.Y. July 15, 2011); see also 42 U.S.C. § 406(b)(1)(A). Section 406(b) further requires that the district court review the reasonableness of the requested fee. See Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990).

In order to determine the reasonableness of an award under Section 406(b), "courts have considered numerous factors, including: (1) whether the retainer was the result of fraud or overreaching; (2) whether the attorney was ineffective or caused unnecessary delay; (3) whether the fee would result in a windfall to the attorney in relation to the services provided; and (4) the risk of loss the attorney assumed by taking the case." Kazanjian, 2011 WL 2847439, at *1. However, in the SSA context, "the best indicator of the 'reasonableness' of a contingency fee . . . is the contingency percentage actually negotiated between the attorney and client, not an hourly rate determined under lodestar calculations." Wells, 907 F.2d at 371. Thus, in an SSA case in which there is a contingency fee agreement, "the district court's determination of a reasonable fee under § 406(b) must begin with the agreement, and the district court may reduce the amount called for by the contingency agreement only when it finds the amount to be unreasonable." Id.


A. Prevailing Party

The Supreme Court has acknowledged that in a case such as this, "where a court's remand to the agency for further administrative proceedings does not necessarily dictate the receipt of benefits, the claimant will not normally attain 'prevailing party' status within the meaning of § 2412(d)(1)(A) until after the result of the administrative proceedings is known." Sullivan v. Hudson, 490 U.S. 877, 886-87 (1989); see also Hanrahan v. Hampton, 446 U.S. 754, 758-59 (1980) (holding that defendants were not entitled to an award of attorney's fees because the reversal of a directed verdict on appeal did not render plaintiffs "prevailing parties" in the action). "In order to be considered a prevailing party, a plaintiff ...

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