United States District Court, W.D. New York
NICHOLAS R. DOLDAN, Plaintiff,
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge
by counsel, Nicholas R. Doldan (“plaintiff”)
brought this action pursuant to Title XVI of the Social
Security Act (“the Act”), seeking review of the
final decision of the Commissioner of Social Security
(“the Commissioner”) denying his application for
supplemental security income (“SSI”). On April 1,
2016, this Court reversed that decision and remanded the case
solely for the payment and calculation of benefits. Doc. 20.
On February 27, 2017, the Social Security Administration
(“SSA”) issued a Notice of Award stating that
plaintiff was entitled to $62, 410.00 in past due benefits.
Doc. 25-5. Of that past due amount, $15, 602.50 was withheld
for attorney's fees. Id.
counsel, Kenneth Hiller, Esq., has now moved for
attorney's fees pursuant to 42 U.S.C. § 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, for legal services performed in this
proceeding. Docs. 25, 27. Plaintiff's counsel requests a fee
award of $15, 602.50 under Section 406(b), with the
understanding that he will refund the fee previously awarded
under the Equal Access to Justice Act (“EAJA”),
$7, 000.00, upon receipt of the award.
Commissioner filed a response dated April 3, 2017, which
states no objections to the instant motion. For the reasons
discussed below, plaintiff's counsel's motion is
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).
Court begins its reasonableness analysis with the contingency
agreement itself, which is unambiguous. The 25 percent fee
for services provided by plaintiff's attorney 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 of benefits.
next to the amount of the award requested, counsel asserts
that plaintiff's past-due benefits totaled $62, 410.00,
and that, from this amount, $15, 602.50 was withheld for the
payment of attorney's fees. Plaintiff's counsel
accordingly requests $15, 602.50. Based on his itemization of
hours for work performed before the District Court at 39.7
hours, this would result in a de facto hourly rate
of $418.20. This rate does not represent a
“windfall” to counsel, as the Commissioner
acknowledges. 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 that plaintiff's request is reasonable.
The Court directs the Commissioner to remit to
plaintiff's counsel the requested $15, 602.50 fee award,
which award will be offset by the $7, 000.00 award of EAJA
foregoing reasons, plaintiff's motion for attorney's
fees is granted. The Commissioner is directed to remit to
plaintiff's counsel $15, 602.50. Upon receipt of the fee
award, counsel is directed that he refund to plaintiff ...