United States District Court, W.D. New York
DECISION AND ORDER
G. LARIMER UNITED STATES DISTRICT JUDGE.
before the Court is a motion by counsel for plaintiff, a
prevailing party in this action for Social Security benefits,
for an order awarding attorney's fees pursuant to 42
U.S.C. §406(b). (Dkt. #21). Plaintiff's counsel,
Peter A. Gorton, seeks an award of $21, 400.00 (21% of the
award for past-due benefits), which will be reduced by $5,
400.00 when counsel refunds to plaintiff the amount
previously awarded to the plaintiff for attorney fees under
the Equal Access to Justice Act (“EAJA”). (Dkt.
#20). This would result in net fees in the amount of $16,
000.00, which represents less than 16% of the $103, 189.12
sum awarded to plaintiff for past-due benefits.
Commissioner does not overtly oppose plaintiff's motion,
but has filed a response suggesting that the resultant de
facto hourly rate may be excessive, and pointing out
that the motion for attorney's fees was filed prematurely
- that is, before the Notice of Award was issued to plaintiff
by the Social Security Administration - and did not correctly
estimate the amount awarded to plaintiff in the Notice of
that the amount of the requested fee is reasonable, in light
of the character of the representation, plaintiff's
counsel's expertise in Social Security law, the results
that were achieved, and the absence of any delay in the
proceedings by counsel. See Silliman v. Barnhart,
421 F.Supp.2d 625 (W.D.N.Y. 2006); Joslyn v.
Barnhart, 389 F.Supp.2d 454 (W.D.N.Y.2005). The Court
has reviewed the time records submitted by plaintiff's
counsel (Dkt. #21-1), and I find no evidence of delay or
duplication of effort.
the net amount of attorney's fees that counsel stands to
receive - a total of $16, 000.00 - results in a de
facto hourly rate of $551.72. This amount is within the
range of hourly fees found to be reasonable in similar cases
in this district. See e.g., Rice v. Commissioner,
2019 U.S. Dist. LEXIS 6405 at *6 (W.D.N.Y. 2019) (collecting
cases, and noting that hourly rates of $726.40 per hour and
similar are not unreasonable); Post v. Saul, 2019
U.S. Dist. LEXIS 111465 at *6 (W.D.N.Y. 2019) (granting
attorneys fees which result in a de facto hourly
rate of $677.21); Wells v. Berryhill, 2018 U.S.
Dist. LEXIS 196634 at *8 (W.D.N.Y. 2018) (finding that a fee
request that would result in de facto rates of
$911.50 per hour is unreasonable, and reducing the award to a
“reasonable” fee with de facto hourly
rates of $740.85 per hour); Vinson v. Colvin, 2016
U.S. Dist. LEXIS 83880 at *4-*5) (W.D.N.Y. 2016) (noting that
the “Second Circuit has upheld as
non-‘windfalls' a higher de facto hourly
rate than that found here, which totaled $588.90 per
hour”); McCarthy v. Colvin, 2016 U.S. Dist.
LEXIS 78273 at *4-*5 (W.D.N.Y. 2016) (finding a de
facto hourly rate of $758.69 per hour to be reasonable,
and observing that Second Circuit has upheld fee awards at
even higher rates).
Court further observes that outside of the Social Security
context, a contingent fee typically represents the past and
future value of the case. Within the Social Security context
however, the statute specifies that attorney's fees are
to be based solely on the amount awarded for past-due
benefits. See 42 U.S.C. §406(b)(1). Here,
because plaintiff also received future benefits including
monetary payments and insurance coverage, the value of this
case to plaintiff, and the results achieved by her counsel,
are not fully reflected by the amount of past-due benefits.
In contrast, counsel assumed a substantial risk in taking
this case, given that plaintiff's claim had been denied
at all levels of agency review prior to the initiation of
this action. As a recent case in this district acknowledged,
the remand rate for Social Security disability appeals is
only 45%, and only 66% of the remanded cases result in
awards. Post, 2019 U.S. Dist. LEXIS 111465 at *6.
in considering the instant motion, the Court has taken note
of the interest in assuring future representation for
disability claimants, and the lack of any factor indicating
that the requested award would result in a windfall. See
Gisbrecht v. Barnhart, 535 U.S. 789, 802
(2002).The Court also observes that the amount
sought, both before and after the refund of EAJA fees, does
not exceed the statutory 25% cap. See 42 U.S.C.
foregoing reasons, plaintiffs motion for attorney's fees
pursuant to 42 U.S.C. §406(b) (Dkt. #21) in the amount
of $21, 400.00 is granted. The award is to be made payable to
Peter A. Gorton, Esq., attorney for plaintiff. If counsel has
not already refunded the amount of previously-awarded EAJA
fees (Dkt. #20) to the plaintiff pursuant to 28 U.S.C.
§2412, counsel is directed to do so now.
 Plaintiff was awarded an initial
payment of $103, 189.12 through November 2019, with monthly
payments of $1, 664.00 thereafter. (Dkt. #23-1).
 Counsel over-estimated past-due
benefits at $130, 000.00. (Dkt. #21-1). The award, instead,
was $103, 189.12. (Dkt. #23-1). Because the instant decision
relies on calculations using the correct figure, and because
the amount sought by counsel still does not exceed the 25%
statutory cap or result in an unreasonable hourly rate, any