United States District Court, W.D. New York
JUDY R. SMITH, Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.
Attorneys for Plaintiff KENNETH R. HILLER, and ELIZABETH ANN
HAUNGS, of Counsel.
P. KENNEDY, JR. UNITED STATES ATTORNEY Attorney for Defendant
Federal Centre 138 Delaware Avenue Buffalo, and KRISTINA
DANIELLE COHN, Special Assistant United States Attorneys, of
Counsel Social Security Administration Office of General
Counsel and DENNIS J. CANNING, and SCOTT C. KELLER, Special
Assistant United States Attorneys, of Counsel Social Security
Administration Office of General Counsel.
DECISION AND ORDER
G. FOSCHIO UNITED STATES MAGISTRATE JUDGE.
19, 2018, the parties to this action consented pursuant to 28
U.S.C. § 636(c) to proceed before the undersigned. (Dkt.
7). The matter is presently before the court on
Plaintiff's motion for approval of attorney fees under 42
U.S.C. § 406(b), filed November 12, 2019 (Dkt. 23).
commenced this action on January 26, 2018, pursuant to Title
XVI of the Social Security Act (“the Act”), 42
U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial
review of the Commissioner of Social Security's final
decision denying Plaintiff's application filed with the
Social Security Administration (“SSA”), on March
31, 2014, for Social Security Disability Insurance under
Title II of the Act (“SSDI” or “disability
benefits”). Opposing motions for judgment on the
pleadings were filed, Dkt. 8 (Plaintiff's motion), and
Dkt. 13 (Defendant's motion), and in a Decision and Order
filed June 20, 2019 (Dkt. 17) (“Decision and
Order”), judgment on the pleadings was granted by the
undersigned in favor of Plaintiff with the matter remanded to
the Commissioner for further proceedings consistent with the
Decision and Order. On September 30, 2019, in connection with
the remand, Plaintiff applied for and was awarded under the
Equal Access to Justice Act, 28 U.S.C. § 2412
(“EAJA”), $ 7, 662.45 in fees (“EAJA
fees”). On October 27, 2019, the SSA issued a Notice of
Award granting Plaintiff disability benefits including $ 91,
355.52 in retroactive benefits, of which 25 % or $ 22, 838.88
was withheld to pay attorney fees. On November 12, 2019,
Plaintiff filed the instant motion pursuant to 42 U.S.C.
§ 406(b), seeking $ 22, 838.88 in attorney fees, and
indicating the EAJA fees had yet to be received. In response
(Dkt. 25), the Commissioner argues an award of $ 22, 838.88
would result in an unreasonable hourly rate but does not
otherwise oppose the motion.
relevant to the instant motion, the Act provides
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) (“§ 406”).
in retaining counsel in connection with her disability
benefits application, Plaintiff executed a contingent Fee
Agreement providing counsel with permission to apply
for fees up to 25% of any retroactive benefits awarded under
§ 406 if Plaintiff's disability benefits application
required litigation in federal court.
the requested attorney fee does not exceed the statutory 25%
cap, “the attorney for the successful claimant must
show that the fee sought is reasonable for the services
rendered.” Gisbrecht v. Barnhart, 535 U.S.
789, 807 (2002). Where, as here, there exists an
attorney-client contingent fee agreement, “§ 406
does not displace contingent-fee agreements as the primary
means by which fees are set for successfully representing
Social Security benefits claimants in court. Rather, §
406(b) call for court review of any such arrangements as an
independent check to assure that they yield reasonable
results in particular cases.” Id. Contingent
fee agreements are also entitled to some deference, Wells
v. Sullivan, 907 F.2d 367, 371 (2d Cir. 1990), in
“the interest in assuring that attorneys continue to
represent clients such as the plaintiff.”
Gisbrecht, 535 U.S. at 805. Nevertheless, contingent
fee agreements “are unenforceable to the extent that
the provide for fees exceeding 25 percent of the past-due
benefits.” Id. As such, “[w]ithin the 25
percent boundary . . . the attorney for the successful
claimant must show that the fee sought is reasonable for the
services rendered.” Id.
Second Circuit Court of Appeals has identified three factors
to be considered in determining whether to approve the full
amount of attorney fees requested under a contingent fee
agreement, including (1) whether the requested fee is within
the 25% statutory cap; (2) whether there was any fraud or
overreaching in making the contingent fee agreement; and (3)
whether the requested fee is so large as to be a
“windfall” to the attorney. Wells, 907
F.2d at 372. The court is also required to assess whether the
requested fee is inconsistent with the character of the legal
representation and the results achieved by legal counsel, as
well as whether counsel affected any unreasonable delay in
the proceedings to increase the retroactive benefits and,
consequently, the attorney's own fee. Joslyn v.
Barnhart, 389 F.Supp.2d 454, 456 (W.D.N.Y. 2005) (citing
Gisbrecht, 535 U.S. at 808). Here, the
Commissioner's challenge to the attorney fee request is