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Pavia v. Commissioner of Social Security

United States District Court, Second Circuit

October 15, 2013

BRENDA OSBORNE PAVIA, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

HOWARD D. OLINSKY, ESQ., OLINSKY LAW GROUP, P.C., Syracuse, NY, Counsel for Plaintiff.

PETER W. JEWETT, ESQ., U.S. SOCIAL SECURITY ADMIN., OFFICE OF REG'L GEN. COUNSEL - REGION II, New York, NY, Counsel for Defendant.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this social security action filed by Brenda Pavia ("Plaintiff") against the Commissioner of Social Security ("Defendant"), are the following: (1) Plaintiff's motion for attorney's fees pursuant to the Equal Access Justice Act, 28 U.S.C. § 2412 ("EAJA") (Dkt. No. 19); and (2) Plaintiff's motion for attorney's fees pursuant to Section 206(b)(1) of the Social Security Act ("SSA") (Dkt. No. 23). For the reasons stated below, Plaintiff's EAJA motion is granted in part and denied in part; and her SSA motion is granted.

I. RELEVANT BACKGROUND

A. Facts and Procedural History

Plaintiff filed an initial application for disability benefits on December 19, 2006, alleging the existence of an ongoing disability with an original onset date of April 9, 2006. (Dkt. No. 15, at 12.) Plaintiff's application was denied. ( Id. ) A hearing was held before an Administrative Law Judge ("ALJ") of the Social Security Administration on April 30, 2009. ( Id. ) On June 1, 2009, the ALJ issued his decision finding that Plaintiff was not disabled. ( Id. ) Plaintiff appealed from the ALJ's decision to the Social Security Administration's Appeals Council. ( Id. at 14.) The Appeals Council denied Plaintiff's request for review. (Dkt. No. 15, at 14.)

On July 7, 2009, Plaintiff commenced an action in federal court seeking a reversal or remand of the ALJ's decision. ( Id. ) On October 15, 2009, Plaintiff entered into a contingency fee agreement with her current attorney ("Attorney Olinsky"). (Dkt. No. 23, at 2 [Plf.'s SSA § 206(b)(1) brief].) As a result of entering into the contingency fee agreement, Attorney Olinsky became entitled to a maximum of 25% of any retroactive benefits awarded to Plaintiff. ( Id. )

On August 20, 2012, Magistrate Judge Peebles ("Judge Peebles") issued a Report-Recommendation recommending the vacating of the ALJ's conclusion and remanding the case for further proceedings. ( See generally Dkt. No. 15.) Judge Peebles noted that the ALJ's decision was sound in the following respects: (1) the ALJ properly developed the record; and (2) the ALJ properly applied the treating physician rule giving the appropriate weight to all of the physicians' opinions. (Dkt. No. 15, at 27-33). However, Judge Peebles found that the ALJ's Step Four RFC determination was "fatally flawed" because he failed to "fully assess Plaintiff's subjective complaints, applying the seven factors listed in 20 C.F.R. § 404.1529(c)(3), " and he failed to consider "Plaintiff's uninterrupted twenty-five year [work] history" when evaluating the credibility of Plaintiff's claim that she could not work. ( Id. at 33-37.)

On September 25, 2012, based upon Judge Peebles Report-Recommendation, this Court vacated Defendant's final determination and remanded the case for further proceedings. ( See generally Dkt. No. 16.) On October 31, 2012, Plaintiff filed a timely motion and itemized statement seeking an award of costs and attorney's fees to be paid by Defendant in the amount of $8, 136.74 pursuant to the EAJA. ( See generally Dkt. No. 19.)

Plaintiff received a new hearing before an ALJ; and on April 22, 2013, the ALJ issued a fully favorable decision finding Plaintiff disabled as of April 9, 2006. (Dkt. No. 23, at 1 [Plf.'s SSA § 206(b)(1) Brief].) The retroactive benefits awarded to Plaintiff totaled $53, 524.00. ( Id. at 2.) The SSA withheld $13, 040.50 from Plaintiff, in accordance with the contingency fee agreement that she entered into with Attorney Olinsky. ( Id. ) On July 12, 2013, a second motion was filed seeking an order granting Attorney Olinsky the withheld $13, 040.50 pursuant to Section 206(b)(1) of the Social Security Act ("SSA"). ( See generally Id. )

B. Parties' Briefing on the Motions

In the first motion, Plaintiff argues that she is entitled to an award of attorney's fees under the EAJA because (1) her application was timely, (2) she prevailed in the underlying action securing a reversal of Defendant's final determination, and (3) Defendant's position was not substantially justified. (Dkt. No. 19, at 3-4 [Plf.'s EAJA brief].) Plaintiff argues that the ALJ's failure to engage in a credibility analysis, as specified by the social security regulations, is sufficient to warrant a finding that Defendant's position was not substantially justified. (Dkt. No. 22, at 2-3 [Plf.'s Resp. to Def.'s EAJA brief].) Plaintiff also argues that the amount of attorney's fees requested was reasonable. (Dkt. No. 19, at 4 [Plf.'s EAJA brief].) She requests a total award of $8, 136.74 reflecting 44.8 hours of work, including $40 for "administrative work" and $14.34 in costs for service of the summons and complaint. ( Id. at 56-57.)

Defendant does not contest the reasonableness of the award, the timeliness of the application, or that Plaintiff was a prevailing party. ( See generally Dkt. No. 21 [Def.'s EAJA brief].) However, Defendant argues that its position was substantially justified. ( Id. at 4-7.) Defendant's primary argument is that the ALJ's failure to assess Plaintiff's credibility in accordance with the social security regulations is insufficient, standing alone, to render Defendant's position substantially unjustified. ( See Id. )

In the second motion, Plaintiff argues that Attorney Olinsky is entitled to attorney's fees in the amount of $13, 040.50 pursuant to Section 206(b)(1) of the SSA. (Dkt. No. 23, at 7 [Plf.'s SSA § 206(b)(1) brief].) Plaintiff argues that the fee is reasonable because it reflects the intent of the contracting parties, it is beneath the statutory maximum that could be awarded (25% of awarded retroactive benefits), there was no fraud or overreaching between the parties, and the amount does not represent a windfall to the attorney. ( Id. at 4-7).

Defendant does not contest the reasonableness of the requested award. In fact, Defendant endorses its reasonableness. (Dkt. No. 24, at 2 [Def.'s SSA § 206(b)(1) brief].) Nevertheless, as was acknowledged in the briefs, this Court is required to independently assess and evaluate the contingency fee and adjust it if necessary. ( Id. at 1.)

Finally, as was also acknowledged in the briefs, if this Court grants both motions, it is Attorney Olinsky's obligation under the law to not accept the smaller award (in this case, the EAJA Award). (Dkt. No. 23, at 4 [Plf.'s SSA § 206(b)(1) brief].) Plaintiff, as ...


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