Vogth-Eriksen v. Commissioner of Social Security

Filing 26

RULING granting 25 Motion for Attorney Fees. Signed by Judge Sarah A. L. Merriam on 12/4/18. (Dowie, C)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
------------------------------x
:
DIANE VOGTH-ERIKSEN
:
:
v.
:
:
NANCY BERRYHILL,
:
ACTING COMMISSIONER OF
:
SOCIAL SECURITY
:
:
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Civ. No. 3:16CV01114(SALM)

December 4, 2018

RULING ON PLAINTIFF’S MOTION FOR ATTORNEY’S FEES
PURSUANT TO 42 U.S.C. §406(b)(1) [Doc. #25]
Plaintiff Diane Vogth-Eriksen (“plaintiff”) has filed a
motion for attorney’s fees pursuant to 42 U.S.C. §406(b)(1).
[Doc. #25]. 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. #25] is GRANTED in the amount of $22,734.00.
I. Background
On May 17, 2013, plaintiff applied for disability insurance
benefits claiming that she had been disabled since March 6,
2013. (Doc. #10, Certified Transcript of the Record, Compiled on
July 28, 2016, (hereinafter “Tr.”) 191). Following a hearing
before an Administrative Law Judge (“ALJ”), the ALJ denied
plaintiff benefits on February 10, 2015. (Tr. 17-36). After
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exhausting her administrative remedies, plaintiff filed the
Complaint in this case on July 5, 2016. See Doc. #1. On October
10, 2016, the Commissioner filed her Answer and the official
transcript. See Doc. #11. On December 12, 2016, plaintiff filed
her motion seeking to reverse and/or remand the Commissioner’s
decision (“Motion to Reverse”), along with a supporting
memorandum. See Doc. #15. On February 21, 2017, the Commissioner
filed a Motion for Entry of Judgment Under Sentence Four of 42
U.S.C. §405(g) with Reversal and Remand of the Cause to the
Defendant. See Doc. #21. On February 22, 2017, the undersigned
issued a Ruling, granting the Commissioner’s motion to remand
the case for further proceedings, and denying as moot
plaintiff’s Motion to Reverse. See Doc. #21. Judgment was
entered on February 23, 2017. See Doc. #22.
On May 16, 2017, plaintiff filed a stipulation for
allowance of fees in the amount of $7,200.00 and costs in the
amount of $400.00 under the Equal Access to Justice Act
(“EAJA”). [Doc. #23]. The undersigned granted the fee
stipulation on May 18, 2017. [Doc. #24].
Plaintiff’s counsel represents that plaintiff has prevailed
on remand and has been awarded $90,936.00 in benefits. See Doc.
#25 at 1-2. Plaintiff’s counsel includes with her motion a
notice from the Northeastern Program Service Center of the
Social Security Administration which states: “We usually
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withhold 25 percent of past due benefits in order to pay the
approved lawyer’s fee. We withheld $22,734.10 from your benefits
in case we need to pay the representative.” Doc. #25-1 at 1.
Plaintiff’s counsel now seeks an award of $22,734.10 in
attorney’s fees pursuant to 42 U.S.C. §406(b), and in accordance
with the contingency fee agreement executed by plaintiff on
November 30, 2016. See Doc. #25-2.
II.

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)
(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 omitted).
When considering a fee application under section 406(b), “a
court’s primary focus should be on the reasonableness of the
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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) (quotation marks and citation omitted)).
“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.
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Supp. 2d at 325. Such a reduction is appropriate only “when [the
court] finds the amount to be unreasonable.” Wells, 907 F.2d at
371.
III. Discussion
The Court begins with a review of the “Contingent Fee
Agreement[,]” signed by plaintiff on November 30, 2016 (the
“Agreement”). [Doc. #25-2]. The Agreement provides for a
presumptively reasonable fee of “twenty-five percent (25%) of
the past due benefits[.]” 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 a significant 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 her fee.
Plaintiff’s counsel complied with all filing deadlines. See,
e.g., Doc. #11, Doc. #15. Plaintiff’s counsel not only did not
request that any deadlines be extended, but successfully
persuaded the Commissioner to file her own motion for voluntary
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remand, see Doc. #20, expediting the reprocessing of plaintiff’s
application for benefits by up to a year, see Sama, 2014 WL
2921661, at *3.
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 has not provided
information regarding the hours worked in this case. This makes
the third factor difficult, though not impossible, to evaluate.
Other section 406(b) fee awards that have been approved in
this Circuit regularly approximate $800 per hour. See, e.g.,
Sama, 2014 WL 2921661, at *4 (hourly rate of $785.30); Joslyn v.
Barnhart, 389 F. Supp. 2d 454, 455-57 (W.D.N.Y. 2005) (hourly
rate of $891.61); Destefano v. Astrue, No. 05CV3534(NGG), 2008
WL 623197, at *6 (E.D.N.Y. Mar. 4, 2008) (hourly rate of
$849.09), report and recommendation adopted, 2008 WL 2039471
(May 9, 2008). While courts in this Circuit proceed with caution
before awarding fees equaling or exceeding $1,000 per hour, such
fees have also been approved. See Torres v. Colvin, No.
11CV5309(JGK), 2014 WL 909765, at *4 (S.D.N.Y. Mar. 6,
2014)(hourly rate of $1,000); Kazanjian v. Astrue, No.
09CV3678(BMC), 2011 WL 2847439, at *2 (E.D.N.Y. July 15, 2011)
(hourly rate of $2,100.00).
Here, the Court has already concluded that “the transcript
in this case was comprised of 1586 pages, and thus was
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relatively long. Further, plaintiff’s counsel submitted a
thorough and well-reasoned brief. Finally, counsel did not
represent plaintiff during the administrative proceedings, and
thus was required to familiarize herself with the record prior
to briefing.” Doc. #24. Using an hourly rate of $800 would
equate to 28.4 hours of work. When determining if a fee award
would result in a windfall, the Court considers not only the
hours actually worked, but the number of hours that could be
expected to be spent on the tasks performed. To consider only
the hours worked would be to penalize counsel for efficiency and
experience. See Torres v. Colvin, No. 11CV5309(JGK), 2014 WL
909765, at *5 (S.D.N.Y. Mar. 6, 2014); Maier v. Apfel, No.
95CV9264(JGK), 1998 WL 401536, at *2 (S.D.N.Y. July 17, 1998)
The Court finds that 28.4 hours for the review of over 1500
pages of records and the production of 39 pages of persuasive,
“well reasoned[,]” Doc. #24, briefing and a condensed statement
of facts is well within reasonable limits. Even if plaintiff’s
counsel had been able to complete this work in in less time, to
deny this award of fees would be to penalize counsel’s
efficiency when the fee award is viewed in light of other awards
within this circuit.

Accordingly, the Court finds that the fee

requested pursuant to section 406(b) is reasonable under the
circumstances and would not be a windfall to plaintiff’s
counsel.
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The requested attorney’s fees in the amount of $22,734.00
will be awarded to plaintiff’s counsel. However, as acknowledged
by plaintiff’s counsel, she must return to plaintiff the
$7,200.00 previously awarded by the Court under the EAJA. See
Doc. #25 at 2; Doc. #25-3 at 1; see also Gisbrecht, 535 U.S. at
796.
IV.

Conclusion
For the reasons set forth herein, plaintiff’s Motion for

Attorney’s Fees Pursuant to 42 U.S.C. §406(b)(1) [Doc. #25] is
GRANTED. Plaintiff’s counsel is entitled to attorney’s fees in
the amount of $22,734.00. Upon receipt of this award, Attorney
Merritt is ordered to refund to plaintiff the amount of
$7,200.00.
SO ORDERED at New Haven, Connecticut this 4th day of
December, 2018.
_/s/ ________________
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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