WELLS v. COMMISSIONER OF SOCIAL SECURITY

Filing 21

OPINION AND ORDER Directing the Clerk to reopen this case. The 18 Motion for Attorney Fees is granted. The Clerk shall re-close the file and make a new and separate docket entry reading "CIVIL CASE TERMINATED." Signed by Judge Noel L. Hillman on 2/6/2024. (jab)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

JANICE WELLS
Plaintiff,

1:20-cv-10259-NLH

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.

OPINION AND ORDER

APPEARANCES:
JENNIFER LILLEY STONAGE
RICHARD LOWELL FRANKEL
BROSS & FRANKEL
724 KENILWORTH AVE, SUITE 2
CHERRY HILL, NJ 08002
On behalf of Plaintiff
EDA GIUSTI
STUART WEISS
SOCIAL SECURITY ADMINISTRATION
6401 SECURITY BOULEVARD
BALTIMORE, MD 21235
On behalf of Defendant
HILLMAN, District Judge
WHEREAS, this matter comes before the Court pursuant to the
Social Security Act, 42 U.S.C. § 406(b), to review Richard
Frankel, Esquire’s (Counsel of Plaintiff, “Counsel”) Motion for
Attorney’s Fees; and
WHEREAS, on May 16, 2022, Defendant filed a stipulated
consent order for Payment of Equal Access to Justice Act
1

(“EAJA”) Fees allowing Counsel a fee award under the EAJA in the
amount of $6,300.00 and costs in the amount of $400.00 in full
satisfaction of all claims for fees, costs, and other expenses
under the EAJA (ECF 16); and
WHEREAS, on May 17, 2022, the Consent Order was approved by
this Court (ECF 17); and
WHEREAS, on January 22, 2024, Counsel filed a motion for
attorney’s fees pursuant to the Social Security Act, 42 U.S.C. §
406(b), in the amount of $30,000.00 1 (ECF 18); and
WHEREAS, the attorney fee provision of the Social Security
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 claimant is entitled by reason of such judgment,” 42
U.S.C. § 406(b)(1); and

The Court notes that Plaintiff’s supporting brief lists
$25,433.00 as the requested amount on the first page of the
brief. However, the Motion seeks $30,000. (ECF 18 at 1). The
brief concludes by requesting $30,000. (ECF 18-1 at 3). The
Proposed Order lists $30,000 (ECF 18-3 at 1). Moreover, 25% of
the past due benefits of $120,000.00 is $30,000.00. Thus, this
Court views the $25,433.00 number as a typographical error. The
Commissioner pointed this out in its response as well. (ECF 20
at 2 fn. 3).
1

2

WHEREAS, Counsel has certified that a total of 28.4 hours
were expended on Plaintiff’s civil action in federal court (ECF
18-1 at 2);
WHEREAS, Counsel’s advocacy led to a positive result for
Plaintiff (Id. at 1);
WHEREAS, Plaintiff contractually agreed to pay the
contingent fee now sought by Counsel (Id. at 2; ECF 18-7 at 1);
and
WHEREAS, on remand Plaintiff was awarded $120,000.00 in
past-due benefits as well as ongoing benefits as long as she
remains disabled (ECF 18 at 1); and
WHEREAS, Counsel has agreed to remit to Plaintiff the
$6,300.00 in EAJA fees which the Court previously awarded on May
17, 2022 (ECF 18 at 1); and
WHEREAS, the Commissioner has filed a letter response to
Counsel’s petition for attorney’s fees, neither supporting nor
opposing counsel’s request for attorney’s fees (ECF 20); and
WHEREAS, the Court further notes that when determining
whether an amount is reasonable, courts in the Third Circuit
have considered the amount of time spent on the case, the result
achieved, the experience of counsel, the nature of contingent
fees and the risk of non-recovery, counsel’s typical hourly
rate, the EAJA fee previously requested, and whether the
attorney is responsible for any unreasonable delays in the
3

proceeding, see Leak v. Commissioner of Social Security, No. 1151, 2017 WL 5513191, at *1 (D.N.J. Nov. 17, 2017) (citations
omitted); and
WHEREAS, the Court further notes that a higher contingency
fee is reasonable given the risk of non-recovery if Plaintiff’s
claims were unsuccessful, see id.; and
WHEREAS, the Court finds that the following weighs in favor
of the requested and contractually agreed-upon 25 percent
contingency fee:
1.

The fee requested would result in an imputed effective

hourly rate of $1,056.34 which reflects the nature of contingent
fees and the risk of non-recovery; and
2.

Counsel has practiced law for approximately 19 years,

focusing on social security matters (ECF 18-1 at 3 fn. 4); and
3.

Although not dispositive, New Jersey courts have

utilized Community Legal Services of Philadelphia’s fee
schedules as a helpful metric in setting fee rates, which
currently lists an attorney with 16 to 20 years of experience at
a rate of $535 to $625; and
4.

Counsel’s non-contingent hourly rate is $450.00 (ECF

18-1 at 2 fn. 2), which is below the Community Legal Services
fee schedule; and

4

5.

Based on his $450.00 non-contingent hourly rate the

imputed hourly rate is not substantially greater than double his
non-contingent hourly rate; and
6.

The $1,056.34 imputed hourly rate, although on the

high side, is not inconsistent with previously approved rates in
contingency fee cases which carry a risk of non-recovery, see
Gonzales v. Comm’r of Soc. Sec., No. 10-3735, 2017 WL 6513349,
at *2 (D.N.J. Dec. 19, 2017) (approving an imputed hourly rate
of $992.80); Mignone v. Comm’r of Soc. Sec., No. 13-6054, 2018
WL 259949, at *2 (D.N.J. Jan. 2, 2018) (approving an imputed
hourly rate of $850.14); Leak v. Comm’r of Soc. Sec., No. 11-51,
2017 WL 5513191, at *1 (approving an imputed hourly rate of
$745.24); see also Wilson v. Astrue, 622 F. Supp. 2d 132, 134,
137 (D. Del. 2008) (approving an hourly rate of $1,155.59
because the hourly rate deserved less weight where the case was
difficult and counsel was highly skilled in social security
representation); and
7.

Counsel has agreed to remit to Plaintiff the $6,300.00

in EAJA fees which the Court previously awarded, which means
that the overall fees retained by Counsel would be within the
boundaries of reasonableness, see Perez v. Barnhart, No. 023779, 2006 WL 781899 (E.D. Pa. 2006); and
8.

There is no evidence that Counsel delayed proceedings

to increase the fees accrued in this matter; and
5

9.

Counsel was able to able to convince the

Administration via briefing on remand that the Plaintiff was
owed retroactive benefits, and that Plaintiff should also
receive future benefit payments, provided Plaintiff remains
disabled (ECF 18 at 1), a continuing monetary benefit to
Plaintiff beyond the award for past-due benefits accounted for
in the present fee application; and
10.

Plaintiff agreed to the 25 percent contingency fee

(Id. at 2; ECF 18-7 at 1); and
WHEREAS, the Court finds therefore that the foregoing
factors show that the 25 percent contingency expressly permitted
by § 406(b) is reasonable under these circumstances;
Accordingly,
IT IS on this 6th day of February, 2024
ORDERED that the Clerk shall reopen the case and shall make
a new and separate docket entry reading “CIVIL CASE REOPENED”;
and it is further
ORDERED that Counsel remit to Plaintiff any amount received
in EAJA fees pursuant to this Court’s previous award on May 18,
2022; and it is further
ORDERED that Counsel’s Motion for Attorney’s Fees Pursuant
to the Social Security Act be, and the same hereby is, GRANTED,
and Counsel shall be awarded $30,000.00 in attorney’s fees; and
it is finally
6

ORDERED that the Clerk shall re-close the file and make a
new and separate docket entry reading “CIVIL CASE TERMINATED.”

s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.

At Camden, New Jersey

7