United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE MICHAEL A. TELESCA United States District Judge.
Medina (“plaintiff”), represented by counsel,
brought this action pursuant to Title II of the Social
Security Act (“the Act”), seeking review of the
final decision of the Commissioner of Social Security denying
his application for Disability Insurance Benefits
(“DIB”). On January 22, 2015, that decision was
reversed and the case remanded for further proceedings. Doc.
13. On July 27, 2016, the Commissioner issued a fully
favorable decision. Doc. 18-3. Thereafter, the Social
Security Administration (“SSA”) issued a Notice
of Award stating that plaintiff was entitled to $61, 019.80
in past due benefits. Doc. 11-4. Of that past due amount,
$19, 261.00 was withheld for attorney fees. Id.
counsel has now moved for attorney fees pursuant to 42 U.S.C.
§ 406(b) (“Section 406(b)”), asking that the
Court approve the contingent fee arrangement between
plaintiff and his attorney, whereby plaintiff agreed to pay
his attorney 25 percent of any past-due benefits payable to
him, in exchange for the provision of legal services in this
proceeding. Doc. 18. Plaintiff's counsel requests a fee
award of $13, 261.00 under Section 406(b), and states that he
previously applied for and received $7, 300.00 under the
Equal Access to Justice Act (“EAJA”).
Plaintiff's counsel thus applies for the amount indicated
above on the condition that he refund to plaintiff the sum of
$7, 300.00, the amount previously awarded in EAJA fees, to
plaintiff upon receipt.
filed a response by letter brief dated February 8, 2017,
which indicates that the Commissioner does not object to the
motion. For the reasons discussed below,
plaintiff's counsel's motion is granted.
406(b) provides in relevant part that
[w]henever a court renders a judgment favorable to a claimant
under this title 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 such judgment . . .
42 U.S.C. § 406(b)(1)(A). “The Commissioner's
failure to oppose this motion is not dispositive, as
‘[S]ection 406(b) requires an affirmative judicial
finding that the fee allowed is
‘reasonable[.]'” Ewald v. Commissioner of
Social Sec., 2008 WL 4104458, *1 n.1 (E.D.N.Y. Sept. 3,
2008) (quoting Gisbrecht v. Barnhart, 535 U.S. 789,
807 n.17 (2002)); see also Gisbrecht, 535 U.S. at
807 (“[Section] 406(b) calls for court review of such
[contingent-fee] arrangements as an independent check, to
assure that they yield reasonable results in particular
cases.”) (footnote omitted); id. at 808-09.
“Within the 25 percent boundary” established by
Congress in § 406(b)(1)(A), “the attorney for the
successful claimant must show that the fee sought is
reasonable for the services rendered.” Id. at
807 (footnote omitted).
reviewing Section 406(b) motions should consider factors such
as the character of the representation, the results achieved,
the amount of time spent on the case, whether the attorney
was responsible for any delay, and the attorney's normal
hourly billing rate for noncontingent fee cases.
Gisbrecht, 535 U.S. at 808. Other factors properly
considered are any instances of misconduct or ineffectiveness
of counsel; whether counsel would enjoy a windfall because of
either an inordinately large award or because minimal effort
was expended; and the degree of difficulty of the case.
Wells v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990).
Court begins its reasonableness analysis with the contingency
agreement itself, which is unambiguous. The 25 percent fee
for which it provides does not exceed the statutory cap;
moreover, 25 percent is a standard contingency fee for a
Social Security case. Ewald, 2008 WL 4104458, at *2
(citing Gisbrecht, 535 U.S. at 803 (noting that
“[c]haracteristically . . ., attorneys and clients
enter into contingent-fee agreements specifying that the fee
will be 25 percent of any past-due benefits” (internal
quotation marks and citation omitted)). There is no
suggestion in the record that the fee agreement was the
product of fraud or overreaching. Counsel provided effective
representation to plaintiff, securing a reversal of the
Commissioner's adverse decision and the immediate award
next to the amount of the award requested, counsel has
established that plaintiff's past-due benefits totaled
$61, 019.80 and that, from this amount, $19, 261.00 was
withheld for the payment of attorney fees. Based on
plaintiff's counsel's itemization of hours for work
performed before the District Court at 39.4 hours, this would
result in a de facto hourly rate of $336.57. This
rate does not represent a “windfall” to counsel.
See, e.g., Trupia v. Astrue, 2008 WL 858994, *3-*4
(E.D.N.Y. Mar. 27, 2008) (finding award equivalent to $714.09
per hour not a windfall); Blizzard v. Commissioner of
Soc. Sec., 496 F.Supp.2d 320, 323-24 (S.D.N.Y. 2007)
(finding award equivalent to $705.00 per hour not a
windfall); Joslyn v. Barnhart, 389 F.Supp.2d 454,
456 (W.D.N.Y. 2005) (finding award equivalent to $891.61 per
hour not a windfall).
the Court finds the 25 percent contingency fee, applied to
the correct past-due benefits amounts as set forth in
plaintiff's memorandum and supporting exhibits, to be
reasonable. The Court directs the Commissioner to remit to
plaintiff's counsel $13, 261.00, which represents 25
percent of the past-due benefits to plaintiff.
foregoing reasons, plaintiff's counsel's motion for
attorney fees is granted. Commissioner is directed forthwith
to remit to plaintiff's counsel $13, 261.00, which
represents 25 percent of the past-due benefits to plaintiff.
Upon receipt of the fee award, counsel is directed that he