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Whittico v. Colvin

United States District Court, N.D. New York

April 22, 2014

CAROLYN COLVIN, Acting Commissioner of Social Security, Defendant.

OLINSKY LAW GROUP, HOWARD D. OLINSKY, ESQ., Syracuse, New York, Attorneys for Plaintiff.



FREDERICK J. SCULLIN, Jr., Senior District Judge.


Currently before the Court is Plaintiff's counsel's motion for attorney's fees pursuant to 42 U.S.C. § 406(b)(1). See Dkt. No. 18.


Plaintiff's counsel represented him in a civil action before this Court, seeking judicial review of Defendant's denial of Plaintiff's application for disability benefits under the Social Security Act. See Dkt. No. 18-1 at ¶ 1. In a Memorandum-Decision and Order dated November 25, 2009, the Court remanded this matter to Defendant for further administrative action pursuant to sentence six of § 405(g). See id. Plaintiff's counsel continued to represent him post-remand. See id. at ¶ 2. On April 28, 2011, an Administrative Law Judge ("ALJ") rendered a fully favorable decision, finding Plaintiff eligible for Social Security Disability Insurance Benefit payments with a disability onset date of September 1, 2001. See id. Based on this decision, the Court entered judgment in favor of Plaintiff on August 11, 2011. See Dkt. No. 14.[1]

On June 3, 2004, Plaintiff and his counsel entered into a contingency fee agreement, see Dkt. No. 18-1 at ¶ 3, and subsequently they entered into an updated contingency fee agreement on October 5, 2006, see Dkt. No. 18-2.[2] Pursuant to the updated contingency fee agreement, if Plaintiff's counsel had to file an appeal with the Appeals Council or with the Federal Court, Plaintiff's counsel would file a fee petition to increase the amount of the attorney's fees up to 25% of any retroactive benefits that Plaintiff received. See Dkt. No. 18-1 at ¶ 3; Dkt. No. 18-2.

The past-due benefits awarded to Plaintiff and his family totaled more than $115, 000.00. See Dkt. No. 18-1 at ¶ 4. On October 6, 2010, the Social Security Administration authorized attorney's fees in the amount of $4, 867.77. See id. On August 17, 2011, ALJ Greener approved attorney's fees in the amount of $3, 569.50. See id. Pursuant to these approvals, Plaintiff's counsel has collected $8, 437.27 in attorney's fees. See id.; Dkt. No. 18-3. According to Plaintiff's counsel, the Social Security Administration is currently withholding the remaining balance of twenty-five percent of past-due benefits, i.e., $29, 750.10. See Dkt. No. 18-1 at ¶ 41; Dkt. No. 18-4.

In a Consent Order dated October 6, 2011, this Court awarded Plaintiff $3, 200.00 in attorney's fees for work his counsel performed in conjunction with this matter under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. See Dkt. No. 18-1 at ¶5; Dkt. No. 17. Plaintiff's counsel now moves for an order granting his request for attorney's fees in the amount of $29, 750.10 under 42 U.S.C. § 406(b). See Dkt. No. 18-1 at ¶ 7. If the Court grants Plaintiff's counsel's motion, counsel will return the $3, 200.00 EAJA award to Plaintiff as required. See id.

On June 5, 2012, after Plaintiff's counsel had filed the present motion, Defendant issued an "Important Information Notice" to correct its previous letter dated May 22, 2012, in which it had notified Plaintiff that Defendant usually withheld twenty-five percent of the past-due benefits to pay an approved representative's fee. See Dkt. No. 19 at 2. Defendant advised Plaintiff that Defendant had withheld $19, 160.85 from his past-due benefits and that Defendant had withheld an additional $10, 589.25 of the total past-due benefits to other members of his family. See id. The total amount that Defendant withheld was $29, 750.10. See id. In the June 5, 2012 Notice, Defendant also notified Plaintiff that the total amount Defendant should have withheld was $33, 319.50 and that Plaintiff's counsel had been paid $8, 437.27 for work performed before the agency. See id. In light of this new information, Plaintiff's counsel now seeks attorney's fees in the amount of $24, 882.23, rather than $29, 750.10, pursuant to § 406(b).


Under 42 U.S.C. § 406, a prevailing claimant's fees are payable out of the benefits that the claimant recovers, and such fees may not exceed 25 percent of past-due benefits. See Gisbrecht v. Barnhart, 535 U.S. 789, 792 (2002). "[Section] 406(a) governs fees for representation in administrative proceedings; § 406(b) controls fees for representation in court." Id. at 794 (citing 20 CFR § 404.1728(a) (2001)). For representation of a claimant at the administrative level, an attorney may file a fee petition. See id. (citing 42 U.S.C. § 406(a)). In response to such a petition, "the agency may allow fees for services performed in connection with any claim before' it; [however, ] if a determination favorable to the benefits claimant has been made, ... the Commissioner of Social Security shall ... fix... a reasonable fee' for an attorney's services." Id. (quoting § 406(a)(1) (1994 ed.)). In setting the fees using this method, "the agency takes into account, in addition to any benefits award, several other factors[, ]" id., including (1) the extent and type of the services that the attorney performed, (2) the case's complexity, (3) the level of skill and competence required of the attorney, (4) the amount of time the attorney expended on the case, (5) the results the attorney achieved for his client, (6) the level of review to which the attorney took the claim, and (7) the amount of the fee that the attorney requests for her services, see id. n.3 (quoting 20 CFR § 404.1725(b)).

As an alternative to fee petitions, the Social Security Act accommodates contingent-fee agreements filed with the Social Security Administration prior to a ruling on the benefits claim. See id. at 795. If the ruling on the benefits claim is favorable to the claimant, the Social Security Administration generally approves the fee agreement, subject to certain statutory ...

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