Vainwright v. Colvin
RULING granting 31 MOTION for Attorney Fees PURSUANT TO 42 U.S.C. §406(b)(1). Signed by Judge Sarah A. L. Merriam on 8/15/2017. (Katz, S.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ACTING COMMISSIONER OF
Civ. No. 3:15CV01025(JCH)
August 15, 2017
RULING ON PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
PURSUANT TO 42 U.S.C. §406(b)(1) [Doc. #31]
Plaintiff Misty Vainwright (“plaintiff”) has filed a motion
for attorney’s fees pursuant to 42 U.S.C. §406(b)(1). [Doc.
#31]. Defendant, Nancy A. Berryhill, the Acting Commissioner of
the Social Security Administration (the “defendant” or the
“Commissioner”) has not responded to plaintiff’s motion. For the
reasons articulated below, plaintiff’s Motion for Attorney’s
Fees Pursuant to 42 U.S.C. §406(b)(1) [Doc. #31] is GRANTED in
the amount of $12,709.75.
On December 6, 2013, plaintiff applied for disability
insurance benefits claiming that she had been disabled since
September 1, 2013. (Doc. #8, Certified Transcript of the Record,
Compiled on August 6, 2015, (hereinafter “Tr.”) Tr. 174-76).
Following a hearing before an Administrative Law Judge (“ALJ”),
the ALJ denied plaintiff benefits on November 10, 2014. (Tr. 751
95). After exhausting her administrative remedies, plaintiff
filed the Complaint in this case on July 6, 2015. [Doc. #1]. On
September 23, 2015, the Commissioner filed her Answer and the
official transcript. [Doc. #8]. On December 17, 2015, plaintiff
filed her Motion for Judgment on the Pleadings, seeking to
reverse and/or remand the Commissioner’s decision (“Motion to
Reverse”), along with a supporting memorandum. [Doc. ##15-16].1
On March 14, 2016, the Commissioner filed a Motion to Affirm the
Decision of the Commissioner (“Motion to Affirm”). [Doc. #21].
On July 11, 2016, the undersigned issued a Recommended Ruling,
recommending that plaintiff’s Motion to Reverse be granted and
that the Commissioner’s Motion to Affirm be denied. [Doc. #23].
On July 19, 2016, defendant filed an objection to the
Recommended Ruling [Doc. #24], to which plaintiff filed a
response. [Doc. #25]. On August 25, 2016, Judge Janet C. Hall
overruled defendant’s objection, and affirmed, adopted and
ratified the Recommended Ruling. [Doc. #26]. Judgment was
entered on August 31, 2016. [Doc. #27].
On November 16, 2016, plaintiff filed a stipulation for
allowance of fees in the amount of $4,753.70 under the Equal
The Court initially denied plaintiff’s motion without prejudice
to re-filing for failure to abide by the Court’s scheduling
order. See Doc. #17. On January 15, 2016, plaintiff timely refiled her Motion to Reverse, and supporting memorandum, in
compliance with the Court’s scheduling order. [Doc. ##18, 19].
Access to Justice Act (“EAJA”). [Doc. #29]. Judge Hall granted
and so ordered the fee stipulation on November 17, 2016. [Doc.
Plaintiff’s counsel represents that on September 20, 2016,
the Appeals Council vacated the final decision of the
Commissioner and remanded the case for another administrative
hearing, which was held on January 31, 2017, before ALJ John
Aletta. See Doc. #31-2 at 2. On March 10, 2017, ALJ Aletta found
plaintiff disabled as of September 1, 2013. See id. at 2-3.
Plaintiff and each of her three minor children received a Notice
of Award dated June 21, 2017, delineating the amounts each would
receive as a result of the ALJ’s finding of disability. See Doc.
##31-3, 31-4. The Notices state: “We usually withhold 25 percent
of past due benefits in order to pay the approved lawyer’s fee.”
Doc. #31-3 at 7; Doc. #31-4 at 14, 18, 22. The SSA withheld
$9,145.00 from plaintiff’s past due benefits, and $1,188.25 from
the past due benefits awarded to each of plaintiff’s three minor
children, for a total amount withheld of $12,709.75. See id.
Plaintiff’s counsel now seeks an award of $12,709.75 in
attorney’s fees pursuant to 42 U.S.C. §406(b), and in accordance
with the contingency fee agreement executed by plaintiff on May
26, 2015. See Doc. #31-3.
B. Legal Standard
“Whenever a court renders a judgment favorable to a
claimant 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, but that fee may not
exceed 25 percent of the total of the past-due benefits to which
the claimant is entitled.” Blizzard v. Astrue, 496 F. Supp. 2d
320, 321–22 (S.D.N.Y. 2007) (quoting 42 U.S.C. §406(b)(1)(A)
(internal quotation marks omitted)). Section “406(b) 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) calls for court
review of such arrangements as an independent check, to assure
that they yield reasonable results in particular cases.”
Gisbrecht v. Barnhart, 535 U.S. 789, 807 (2002) (footnote
When considering a fee application under section 406(b), “a
court’s primary focus should be on the reasonableness of the
contingency agreement in the context of the particular case; and
the best indicator of the ‘reasonableness’ of a contingency fee
in a social security case is the contingency percentage actually
negotiated between the attorney and client, not an hourly rate
determined under lodestar calculations.” Wells v. Sullivan, 907
F.2d 367, 371 (2d Cir. 1990). Ultimately, the attorney seeking
the award “must show that the fee sought is reasonable for the
services rendered.” Gisbrecht, 535 U.S. at 807.
When determining the reasonableness of a fee sought
pursuant to section 406(b), the Court considers the following
factors: “(1) whether the requested fee is out of line with the
character of the representation and the results the
representation achieved; (2) whether the attorney unreasonably
delayed the proceedings in an attempt to increase the
accumulation of benefits and thereby increase his own fee; and
(3) whether the benefits awarded are large in comparison to the
amount of the time counsel spent on the case.” Sama v. Colvin,
No. 3:10CV01268(VLB)(TPS), 2014 WL 2921661, at *2 (D. Conn. June
25, 2014) (quoting Joslyn v. Barnhart, 389 F. Supp. 2d 545, 546
“In the absence of a fixed-fee agreement, payment for an
attorney in a social security case is inevitably uncertain, and
any reasonable fee award must take account of that risk.” Wells,
907 F.2d at 371. “Thus, a reduction in the agreed-upon
contingency amount should not be made lightly[,]” Blizzard, 496
F. Supp. 2d at 325, and is appropriate only “when [the court]
finds the amount to be unreasonable.” Wells, 907 F.2d at 371.
The Court begins with a review of the “U.S. District Court
Retainer Agreement and Assignment,” signed by plaintiff on May
26, 2015 (the “Agreement”). [Doc. #31-3]. The Agreement provides
for a presumptively reasonable fee of “twenty-five percent (25%)
of the past due benefits due [plaintiff] and [her] family
pursuant to 42 U.S.C. §406 of the Social Security Act.” Id.
Considering the plain language of the Agreement, and the factors
recited in Sama, the requested fee is reasonable.
First, there is no evidence that the proposed fee is out of
line with the “character of the representation and the results
the representation achieved.” Sama, 2014 WL 2921661, at *2.
Plaintiff’s counsel achieved a fully favorable result for
plaintiff by securing a remand to the administrative level and
thereafter obtaining an award of past-due benefits.
Second, there is nothing to suggest that plaintiff’s
counsel unreasonably delayed the proceedings in an attempt to
increase the accumulation of benefits and increase his fee.
Plaintiff’s counsel sought a brief extension of time in which to
file plaintiff’s Motion to Reverse, and otherwise complied with
all filing deadlines. See, e.g., Doc. #13.
Third, the Court considers whether “the benefits awarded
are large in comparison to the amount of the time counsel spent
on the case.” Id. Plaintiff’s counsel and other members of his
firm collectively spent 24.60 hours working on this case at the
district court level. See Doc. #31-3. The EAJA fees previously
awarded in this action totaled $4,753.70 for 24.60 hours of
work. See Doc. #29; see also Doc. #31-3. The fee now requested
pursuant to 406(b) -- $12,709.75 –- translates to an hourly rate
of $516.66, which is significantly lower than other section
406(b) fee awards that have been approved in this Circuit. See,
e.g., Sama, 2014 WL 2921661, at *4 (approving section 406(b) fee
award with a comparable hourly rate of $785.30); Joslyn v.
Barnhart, 389 F. Supp. 2d 454, 455-57 (W.D.N.Y. 2005) (approving
section 406(b) fee award in the total amount of $38,116.50 for
42.75 hours of work, representing an hourly rate of $891.61);
Destefano v. Astrue, No. 05CV3534(NGG), 2008 WL 623197, at *6
(E.D.N.Y. Mar. 4, 2008) (approving section 406(b) fee award with
a comparable hourly rate of $849.09), report and recommendation
adopted, 2008 WL 2039471 (May 9, 2008). The Court finds that the
fee now requested pursuant to section 406(b) is reasonable and
would not be a windfall to plaintiff’s counsel.
Accordingly, the requested attorney’s fees in the amount of
$12,709.75 will be awarded to plaintiff’s counsel. However, as
acknowledged by plaintiff’s counsel, he must return to plaintiff
the $4,753.70 previously awarded by the Court under the EAJA.
See Doc. #31-4 at 2-3; see also Gisbrecht, 535 U.S. at 796
(“Congress harmonized fees payable by the Government under EAJA
with fees payable under §406(b) out of the claimant’s past-due
Social Security benefits in this manner: Fee awards may be made
under both prescriptions, but the claimant’s attorney must
refund to the claimant the amount of the smaller fee.” (citation
and internal quotation marks omitted)).
For the reasons set forth herein, plaintiff’s Motion for
Attorney’s Fees Pursuant to 42 U.S.C. §406(b)(1) [Doc. #31] is
GRANTED. Plaintiff’s counsel is entitled to attorney’s fees in
the amount of $12,709.75. Upon receipt of this award, Attorney
Binder is ordered to refund to plaintiff the amount of
This is not a Recommended Ruling. This is an order
regarding attorney’s fees which is reviewable pursuant to the
“clearly erroneous” statutory standard of review. 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the district judge upon motion timely made.
SO ORDERED at New Haven, Connecticut this 15th day of
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE
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