Harvey v. Astrue

Filing 26

DECISION & ORDER: granting the # 23 Motion for Attorney Fees. Plaintiff's Attorney is ordered to return to plaintiff the $7,175.64 in attorney's fees previously awarded under the Equal Access to Justice Act. Signed by Senior Judge Thomas J. McAvoy on 7/2/2013. (jmb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------DICK HARVEY,
Plaintiff,
v.

5:09-CV-0020

COMMISSIONER OF SOCIAL SECURITY,
Defendants.
-------------------------------THOMAS J. McAVOY
Senior United States District Judge
DECISION and ORDER
Presently before the Court is Plaintiff’s Motions for Attorney’s Fees pursuant to
Social Security Act § 206(b)(1) and 42 U.S.C. § 406(b)(1).
Section 406(b) regulates attorney's fees for representation before the
Commissioner of Social Security. It states in relevant part that “[w]henever 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, not in excess of 25 percent of the total of the past-due benefits to which the
claimant is entitled by reason of such judgment.” 42 U.S.C. § 406(b)(1) (A). Section 406(b)
calls for courts to review fee agreements as an independent check to assure that they yield
reasonable results in particular cases. See Wells v. Bowen, 855 F. 2d 37, 41 (2d Cir. 1988).
The claimant's attorney must show that the fee sought is reasonable for the services
rendered. See Gisbrecht v. Barnhart, 535 U.S. 789, 807, 122 S. Ct. 1817, 152 L. Ed.2d 996
(2002).

To determine the reasonableness of the fee, the court must: (1) give due
deference to the intent of the parties; (2) determine whether the fee is within the 25%
statutory limit; (3) determine if there was “fraud or overreaching in [the] making [of] the
agreement;” and (4) determine if the amount requested “is so large as to be a windfall to the
attorney.” Wells v. Sullivan, 907 F. 2d 367, 372 (2d Cir.1990).
Although a successful plaintiff may seek fees under both the EAJA and 42 U.S.C. §
406(b), “. . . the claimant's attorney must refund to the claimant the amount of the smaller
fee, up to the point the claimant receives 100 percent of the past-due benefits.” Gisbrecht,
535 U.S. at 794–95.
Having found the aforementioned factors to be satisfied, Plaintiff’s Motion for
Attorney’s Fees is GRANTED. Plaintiff’s Attorney is ORDERED to return to Plaintiff the
$7,175.64 in attorney’s fees previously awarded under the EAJA.
IT IS SO ORDERED.
Dated: July 2, 2013

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