United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE MICHAEL A. TELESCA United States District Judge.
Mix (“plaintiff”), represented by counsel,
brought this action pursuant to Titles II and XVI of the
Social Security Act (“the Act”), seeking review
of the final decision of the Commissioner of Social Security
denying her applications for Disability Insurance Benefits
(“DIB”) and supplemental security income. On
December 19, 2014, this Court reversed that decision and
remanded the case for further proceedings. Doc. 11. On May
19, 2016, the Commissioner issued a fully favorable decision.
Doc. 16-3 at 7-17. Thereafter, the Social Security
Administration (“SSA”) issued a Notice of Award
stating that plaintiff was entitled to $52, 275.00 in past
due DIB benefits. Doc. 16-3 at 19-56. Of that past due
amount, $13, 068.75 was withheld for attorney fees.
Id. The SSA also issued a notice of award of
auxiliary benefits in favor of plaintiff's daughter,
entitling her to $26, 118.00 in past due benefits.
Id. The SSA withheld $6, 000.00 of this amount for
attorney fees. Id. Additionally, on September 9,
2016, the Commissioner authorized plaintiff's attorney to
collect $8, 802.00 from plaintiff for work done at the agency
level. Doc. 16-3 at 58.
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 $10, 266.75 pursuant to Section 406(b), and states
that he previously applied for and received $3, 000.00
pursuant to 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 $3, 000.00, the amount
previously awarded in EAJA fees, to plaintiff upon receipt.
The $10, 266.75 requested by plaintiff's counsel
represents the total of $19, 068.75 withheld by the SSA, less
$8, 802.00 previously authorized for work performed at the
administrative level, pursuant to 42 U.S.C. § 406(a),
for plaintiff and her minor child.
filed a response dated May 17, 2017, which indicates that the
Commissioner does not object to the 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).
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, and those
of her minor child, totaled $78, 393.00 and that, from this
amount, $19, 068.75 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 17.2
hours, this would result in a de facto hourly rate
of $596.90. 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
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 $10, 266.75, which represents 25
percent of the past-due benefits to plaintiff.
foregoing reasons, plaintiff's counsel's motion for
attorney fees is granted. The Commissioner is directed to
remit to plaintiff's counsel $10, 266.75, which
represents 25 percent of the past-due benefits to plaintiff.
Upon receipt of the fee award, counsel is directed to ...