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Jeffrey S. Sobles v. Michael J. Astrue

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


April 23, 2012

JEFFREY S. SOBLES, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Scullin, Senior Judge

ORDER

On April 3, 2012, Plaintiff filed a motion for attorney's fees pursuant to 42 U.S.C. § 406(b)(1). See Dkt. No. 20. Defendant does not object to this motion. See Dkt. No. 22 at 2.

Section 406(b)(1) of Title 42 of the United States Code permits the court, when it "renders a judgment favorable to a claimant," to "allow as part of its judgment a reasonable fee for [the claimant's attorney's] 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). In this case, the Court previously awarded Plaintiff attorney's fees in the amount of $7,143.69 under the Equal Access to Justice Act, 28 U.S.C. § 2412. A court may award attorney's fees under both 42 U.S.C. § 406(b)(1) and 28 U.S.C. § 2412; but, if it does so, the attorney must give his client the smaller of the two awards. See Wells v. Bowen, 855 F.2d 37, 42 (2d Cir. 1988).

Plaintiff entered into a contingency-fee agreement with counsel, in which Plaintiff specifically agreed that, if his counsel filed an appeal in federal court, his counsel would "file a fee petition . . . [that would] not exceed 25% of the combined, offset, retroactive benefits awarded to" Plaintiff and his family. See Dkt. No. 20-2.

Plaintiff was awarded past-due benefits totaling $63,833.00, twenty-five percent of which is $15,958.25. See Dkt. No. 20-1 at ¶ 4. Plaintiff's counsel has already received a payment of $686.34. See id. The outstanding balance of the twenty-five percent of the past-due benefits is $15,271.91, which represents an hourly rate of $251.60 for 60.7 hours expended on work in this case.

In light of the contingent-fee agreement, the amount of past-due benefits to which Plaintiff is entitled, the hours of work performed, and the experience of counsel, the Court finds that the attorney's fee award that Plaintiff seeks is reasonable. Therefore, the Court hereby

ORDERS that Plaintiff's motion for attorney's fees in the amount of $15,271.91, made payable to Howard D. Olinsky, Esq., pursuant to 42 U.S.C. § 406(b) is GRANTED; upon receipt of this award, Plaintiff's counsel shall refund to Plaintiff the amount of $7,143.69, which he previously received under 28 U.S.C. § 2412.

IT IS SO ORDERED.

20120423

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