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Devaux v. Astrue

United States District Court, E.D. New York

March 25, 2013

JANE DEVAUX, Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant

For Plaintiff: Jeffrey D. Delott, Esq., Jericho, NY.

For Defendant: Vincent Lipari, Assistant United States Attorney, United States Attorney's Office, Central Islip, NY.

Page 350

MEMORANDUM OF DECISION AND ORDER

ARTHUR D. SPATT, United States District Judge.

On October 9, 2012, counsel for the Plaintiff Jane Devaux moved this court pursuant to 42 U.S.C. § 406(b) to authorize an award of attorney fees from Devaux's past due social security disability insurance benefits in the amount of $7,919.50. For the reasons set forth below, the unopposed motion is granted.

I. BACKGROUND

On November 20, 2007, the Plaintiff Jane Devaux filed an action against Michael J. Astrue, Commissioner of Social Security, seeking a review of the decision of an administrative law judge (an " ALJ" ), which denied the Plaintiff's application for disability insurance benefits under Title II of the Social Security Act. Thereafter, on June 10, 2008, the parties entered into a stipulation in which pursuant to the fourth sentence of 42 U.S.C. § 405(g), the Commissioner's final decision was reversed, and the Plaintiff's claim was remanded for further administrative proceedings and the issuance of a new decision. In addition, it was stipulated and agreed that the Plaintiff's Attorney, Jeffrey D. Delott, Esq. (" Mr. Delott" ), would be awarded fees and expenses in the total amount of $3,529.00 in full satisfaction of any claim for fees, costs, and other expenses pursuant to the Equal Access to Justice Act (" EAJA" ), 28 U.S.C. § 2412.

On remand, an ALJ heard the case and on August 9, 2009, issued an unfavorable decision to the Plaintiff. However, on June 7, 2011, the Appeals Council issued a fully favorable decision for her. Thus, the Defendant issued the Plaintiff's Notice of Award on September 20, 2011 for her primary benefits. On November 16, 2011, the Plaintiff's Counsel Jeffrey D. Delott filed a fee petition with the Defendant, seeking $29,948.50, which the Notice of Award stated represented 25% of the past due benefits. However, on May 2, 2012, Mr. Delott received Defendant's Authorization to Charge and Collect a Fee in the amount of only $18,500.

On October 9, 2012, the Plaintiff submitted a motion for attorney fees to this Court pursuant to 28 U.S.C. § 2412 and 42 U.S.C. § 406(b). Specifically, Mr. Delott now seeks $7,919.50, which represents the balance of the 25% that the Defendant is holding from past due benefits for attorney's fees, minus the $3,529.00 paid pursuant to the EAJA. The United States does not oppose the current petition.

II. DISCUSSION

A. Legal Standard

The Social Security Act, 42 U.S.C. § 406(b) sets forth the statutory basis for an award of fees to a lawyer representing a client who obtains Social Security benefits. This provision states, in relevant part:

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 ...

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