McGill v. Berryhill

Filing 34

ORDER: For the reasons explained in the attached Memorandum & Order, the 29 Motion for Attorney's Fees is GRANTED. Plaintiff's counsel is awarded $12,355.75. Upon receipt of that award from the government, Plaintiff's counsel shall promptly refund Plaintiff $6,900.00, which represents the EAJA fees already received by counsel. This case remains closed. Ordered by Judge Pamela K. Chen on 1/11/2022. (Stephan, Keegan)

Case 1:18-cv-06430-PKC Document 34 Filed 01/11/22 Page 1 of 2 PageID #: 633

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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FRANK MCGILL,
Plaintiff,

MEMORANDUM & ORDER
18-CV-6430 (PKC)

- against COMMISSIONER OF SOCIAL SECURITY,
Defendant.
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PAMELA K. CHEN, United States District Judge:

On November 12, 2018, Plaintiff appealed an adverse Social Security decision to this
Court. (Dkt. 1.) After briefing, the Court granted Plaintiff’s motion for judgment on the pleadings,
remanded to the Social Security Administration (“SSA”), and awarded Plaintiff $6,900.00 in
attorney’s fees and costs pursuant to the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412.
(Dkt. 17; 03/18/2020 Docket Order). On remand, Plaintiff was awarded past-due benefits as well
as ongoing payments. (See Dkt. 31-2.) Within the 14-day filing period, Plaintiff’s counsel moved
for attorney’s fees pursuant to 42 U.S.C. § 406(b), which permits courts to award a “reasonable
fee . . . not in excess of 25% of the total of the past-due benefits to which the claimant is entitled,”
less any amount already awarded pursuant to the EAJA. (Dkt. 20); 42 U.S.C. § 406(b); Gisbrecht
v. Barnhart, 535 U.S. 789, 789 (2002).
In this case, Plaintiff’s counsel was retained on a 25% contingency-fee agreement. (Dkt.
31-1.) Plaintiff’s counsel has submitted itemized records demonstrating that he spent 36.1 hours
on this case. (Dkt. 31-3.) Plaintiff’s counsel seeks a total of $12,355.75 in attorney’s fees. 1 (Dkt.

1

Pursuant to 42 U.S.C. § 406(a), counsel has already obtained attorney’s fees for the work
that he performed before the SSA. (See Dkt. 30.) In the present motion, counsel seeks fees only
for the work that he performed before this Court. (Id.)
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Case 1:18-cv-06430-PKC Document 34 Filed 01/11/22 Page 2 of 2 PageID #: 634

29.) While not deploying the lodestar method, the Court notes that $12,355.75 for 36.1 hours
equals $342.26 per hour. In its limited role as a Court-ordered trustee, the Social Security
Commissioner notes that the requested fee is in line with other awards deemed reasonable in this
circuit. (Dkt. 33.) Likewise, this Court finds that the fee requested in this case does not exceed
the 25% statutory cap, there is no evidence of fraud or overreaching in the making of the
contingency-fee agreement, and the requested amount would not be a windfall to Plaintiff’s
counsel. See Wells v. Sullivan, 907 F.2d 367, 372 (2d Cir. 1990); Rivera v. Berryhill, No. 13-CV5060 (PKC), 2018 WL 2436942, at *1 (E.D.N.Y. May 30, 2018) (holding that 39.5 hours is a
reasonable amount of time to work on a social security case in this Court); Devenish v. Astrue, 85
F. Supp. 3d 634, 639 (E.D.N.Y. 2015) (“[A]n award . . . amounting to an hourly rate of $350 . . .
satisfies the underlying policy goal of ensuring that claimants have qualified counsel in their social
security appeals.”).
Accordingly, Plaintiff’s motion for attorneys’ fees pursuant to 42 U.S.C. § 406(b) is
granted and Plaintiff’s counsel is awarded $12,355.75. Upon receipt of that award from the
government, Plaintiff’s counsel shall promptly refund Plaintiff $6,900.00, which represents the
EAJA fees already received by counsel. This case remains closed.
SO ORDERED.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge

Dated: January 11, 2022
Brooklyn, New York

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