United States District Court, N.D. New York
& HERMANN, LLPLEWIS B. INSLER, ESQ. Attorneys for
SECURITY ADMINISTRATION BENIL ABRAHAM, ESQ. Office of the
General Counsel Region II Attorney for Defendant.
DECISION AND ORDER
D'Agostino, U.S. District Judge.
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.
Standard of Review
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).
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
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
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