United States District Court, N.D. New York
OLINSKY LAW GROUP ATTORNEY FOR PLAINTIFF
SECURITY ADMINISTRATION ATTORNEY FOR DEFENDANT
DECISION AND ORDER
D'Agostino, U.S. District Judge
pending before the Court is Wendy Goff's
("Claimant") motion for an award of attorney's
fees pursuant to 42 U.S.C. § 406(b). See Dkt.
No. 13 at 1. The Acting Commissioner has not opposed this motion.
See Dkt. No. 15 at 1. For the following reasons, the
motion is granted.
to 42 U.S.C. § 406(b), a court may award reasonable
attorney's fees to a successful claimant's attorney,
provided that those fees do not exceed twenty-five percent of
the amount of past-due benefits awarded to the claimant.
See Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002);
Wells v. Sullivan, 907 F.2d 367, 370 (2d Cir. 1990).
"[B]ecause a successful social security claimant
evaluates and pays his own attorney, a court's primary
focus should be on the reasonableness of the contingency
agreement in the context of the particular case."
Wells, 907 F.2d at 371. Section 406(b) does not
displace any contingent-fee arrangement between the claimant
and the attorney, but rather sets the ceiling for an award
under any such agreement at twenty-five percent of the
past-due benefits. Gisbrecht, 535 U.S. at 792-93.
Where fee awards are made under both § 406(b) and the
Equal Access to Justice Act ("EAJA"), the
claimant's attorney must refund the smaller amount to the
claimant. See Id. at 796.
counsel seeks payment of twenty-five percent of the past-due
benefits owed. See Dkt. No. 13-1 at ¶¶ 3,
10. Claimant's past-due benefits amount to $90, 106.51,
twenty-five percent of which is $22, 526.63. See
Dkt. No. 13-1 at ¶ 4. In a noticed dated June 26, 2017,
the Social Security Administration ("SSA") advised
claimant that it was withholding $90, 106.51 for possible
claims from the Oswego County Department of Social Services
("Oswego DSS") and for attorney fees. See
Dkt. No. 15-1 at 2. SSA stated the priority of payment would
be Oswego DSS, counsel, and then Claimant. Id.
was previously awarded attorney's fees in the amount of
$8, 788.61 under the EAJA. See Dkt. No. 13-1 at
¶ 2. Counsel has indicated that, in the event that the
Court awards fees pursuant to § 406(b), he will refund
the smaller of the awards to Claimant. See Dkt. No.
13-1 at ¶ 6; see also Gisbrecht, 535 U.S. at
itemized summary shows counsel performed 123.7 hours
representing Claimant at the administrative level and 59.9
hours representing Claimant at the federal court level.
See Dkt. No. 13-1 at ¶ 9; Dkt. No. 13-4. Work
performed at the administrative level is compensable under 42
U.S.C. § 406(a), not 42 U.S.C. § 406(b), and
counsel has indicated that he will not be filing a petition
for 42 U.S.C. § 406(a) fees. By statute, 42 U.S.C.
§ 406(b) fees may be paid only for representation before
a court. Counsel's 59.9 hours of attorney work amounts to
a de facto hourly rate of $376.07. See Dkt. No. 15
at 2. The Court finds that $22, 526.63 is reasonable, given
the hours expended, the fact that counsel secured a favorable
outcome for Claimant, and the Acting Commissioner's lack
of opposition to the request. There is no evidence of fraud
or overreaching, and an hourly rate of $376.07 would not be a
windfall to counsel. See, e.g., Devaux v. Astrue,
932 F.Supp.2d 349, 351 (E.D.N.Y. 2013) (holding that $386.00
per hour was reasonable); Patel v. Astrue, No.
10-CV-1437, 2012 WL 5904333, *4 (E.D.N.Y. Nov. 26, 2012)
(holding that an hourly rate of $650 was reasonable);
Filipkowski v. Barnhart, No. 05-CV-01449, 2009 WL
2426008, *2 (N.D.N.Y. Aug. 6, 2009) (rejecting the
government's claim that an hourly rate of $743.30
amounted to a windfall). Thus, counsel's motion for
attorney's fees pursuant to § 406(b) is granted.
after carefully reviewing the entire record in this matter,
the parties' submissions, and the applicable law, and for
the above-stated reasons, the Court hereby
that Claimant's motion for attorney's fees (Dkt. No.
13) is GRANTED in the amount of $22, 526.63; and the Court
that counsel refund Claimant the sum of $8, 788.61 previously
awarded to Claimant under the EAJA; and the Court further
that the Acting Commissioner is directed to take the steps
necessary to cause the amount of $22, 526.63 to be made
payable to counsel from the fund of withheld past-due
benefits, in compliance with the requirements of the Social
Security Act and implementing regulations as interpreted by
the federal courts, subject to the priorities laid out in the
June 26, 2017, notice from SSA (Dkt. No. 15-1), and in full
satisfaction of the obligations imposed by this Decision and
Order; and the Court further
that the Clerk of the Court shall serve a copy of the
Decision and Order on all parties in ...