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McCracken v. Colvin

United States District Court, N.D. New York

January 27, 2017

LAURA MCCRACKEN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          INSLER & HERMANN, LLPLEWIS B. INSLER, ESQ. Attorneys for Plaintiff

          SOCIAL SECURITY ADMINISTRATION BENIL ABRAHAM, ESQ. Office of the General Counsel Region II Attorney for Defendant.

          DECISION AND ORDER

          Mae A. D'Agostino, U.S. District Judge.

         I. INTRODUCTION

         On January 1, 2012, Plaintiff Laura McCracken commenced suit pursuant to 42 U.S.C. § 405(g) seeking a review of the Commissioner of Social Security's decision to deny her application for Disability Insurance Benefits ("DIB"). See Dkt. No. 1 at 1-2. The parties' familiarity with the background and procedural history of this case is assumed based upon this Court's previous Memorandum-Decision and Order dated May 13, 2014. See Dkt. No. 16. Presently before the Court is Plaintiff's motion for an award of attorney's fees under 42 U.S.C. § 406(b). See Dkt. No. 18-1 at 3. The Commissioner has not opposed the motion.

         II. DISCUSSION

         A. Standard of Review

         42 U.S.C. § 406(b) provides as follows:

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 benefits to which the claimant is entitled by reason of such judgment . . .

42 U.S.C. § 406(b)(1)(A). Thus, 42 U.S.C. § 406(b) requires the plaintiff's attorneys to obtain court approval of their fees and have the court determine that their requested fees are reasonable and should be awarded. See Wells v. Sullivan, 907 F.2d 367, 372 (2d Cir. 1990) (citations omitted); see also Gisbrecht v. Barnhart, 535 U.S. 789, 808-809 (2002) (endorsing the 42 U.S.C. § 406(b) fee determination approach established by the Second Circuit in Wells stating "Section 406(b) calls for court review of such arrangements as an independent check, to assure that they yield reasonable results in particular cases"). In determining the reasonableness of a fee the Supreme Court stated "[c]ourts that approach fee determinations by looking first to the contingent-fee agreement, then testing it for reasonableness, have appropriately reduced the attorney's recovery based on the character of the representation and the results the representative achieved." Gisbrecht, 535 U.S. at 808 (citations omitted).

         "While the court need not make mathematical calculations, it should, of course, determine whether the contingency percentage is within the 25% cap; it should also consider whether there has been fraud or overreaching in making the agreement, and whether the requested amount is so large as to be a windfall to the attorney." Wells, 907 F.2d at 372 (citations omitted).

         B. Analysis

         In an award notice dated July 1, 2015, the Social Security Administration ("SSA") advised Plaintiff that she was awarded monthly disability benefits with a disability onset date of December 20, 2007. See Dkt. No. 18-4 at 1. The notice also stated that SSA withheld $15, 680.23 from her past-due benefits, 25 percent of the total past due benefits, for possible attorney's fee claims under 42 U.S.C. § 406(b). See Id. at 2. In a May 15, 2016 letter, SSA advised Plaintiff that it had approved $9, 680.23 to pay Plaintiff's attorney for work done at the administrative level and that the agency would continue to withhold $5, 197.27 for potential payment of counsel's federal court attorney's fees. See Dkt. No. 18-5 at 1.

         Plaintiff requests this Court award $5, 197.27 for 20.36 hours of attorney work, which represents a de facto hourly rate of $255.27. See Dkt. No. 18-1 at 2-3. When assessing the reasonableness of attorney's fees, "the Supreme Court rejected the use of the 'lodestar' method (i.e., the number of hours reasonably expended times a reasonable hourly rate) to awarding fees under § 406(b) where the plaintiff and her attorney have entered into a contingent-fee agreement." Lapatra v. Astrue, 530 F.Supp.2d 453, 455 (W.D.N.Y. 2008) (citing Gisbrecht, 535 U.S. at 808). Instead, "'[d]eference should be given ... to the freely negotiated expression both of a claimant's willingness to pay more than a particular hourly rate ... and of an ...


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