Cole v. Commissioner of Social Security
DECISION AND ORDER granting 13 Motion for Attorney Fees: The Court hereby ORDERS that Plaintiff's motion for attorney's fees (Dkt. No. 18) is GRANTED in the amount of $10,746.25; and the Court further ORDERS that the check shall be made payable to Plaintiff's counsel and that the check shall be mailed to Plaintiff's counsel; and the Court further ORDERS that the Clerk of the Court shall serve the parties with a copy of this Decision and Order in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 6/8/2017. (ban)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
WILLIAM COLE on behalf of Barbara Cole,
COMMISSIONER OF SOCIAL SECURITY,
LAW OFFICES OF STEVEN R. DOLSON
126 North Salina Street, Suite 3B
Syracuse, New York 13202
Attorney for Defendant
STEVEN R. DOLSON, ESQ.
SOCIAL SECURITY ADMINISTRATION
Office of the General Counsel
26 Federal Plaza - Room 3904
New York, New York 10278
Attorneys for Defendant
KAREN T. CALLAHAN, ESQ.
Mae A. D'Agostino, U.S. District Judge:
DECISION AND ORDER
On February 23, 2015, Plaintiff William Cole commenced suit pursuant to 42 U.S.C.
§ 405(g) seeking a review of the Commissioner of Social Security's decision to deny Barbara
Cole's application for Disability Insurance Benefits. Dkt. No. 1.1 The case was remanded to the
Commissioner, and an Administrative Law Judge issued a partially favorable decision. Dkt. No.
13-1 ¶¶ 11-12. Presently before the Court is Plaintiff's motion for an award of attorney's fees
After Barbara Cole died on September 12, 2014, her husband, William Cole, was made a
substitute party and proceeded with his wife's claim. Dkt. No. 13-1 ¶ 9.
under 42 U.S.C. § 406(b). See Dkt. No. 13. The Commissioner has not opposed the motion.
Dkt. No. 15 at 3.
On April 26, 2012, Barbara Cole filed an application with the Social Security
Administration ("SSA") for disability insurance benefits, which was denied. Dkt. No. 13-1 ¶ 6.
Cole requested a hearing with an administrative law judge ("ALJ"), and the ALJ ultimately issued
an unfavorable decision. Id. ¶ 7. After the Appeals Council denied Cole's request for review of
the ALJ's decision, William Cole timely commenced an action in this Court seeking review of the
final agency decision. Id. ¶¶ 8, 10. On August 26, 2015, the parties entered into a consent order
remanding the case to the Commissioner for further administrative action. Dkt. No. 11. On
remand, the ALJ issued a partially favorable decision and granted benefits from February 12,
2010, through September 12, 2014, the day that Barbara Cole died. Dkt. No. 13-3 at 17.
Standard of Review
42 U.S.C. § 406(b)(1)(A) provides as follows:
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 the claimant is entitled
by reason of such judgment . . .
Thus, the plaintiff's attorneys must obtain court approval of their fees and have the court
determine that their requested fees are reasonable and should be awarded. See Wells v. Sullivan,
907 F.2d 367, 372 (2d Cir. 1990); see also Gisbrecht v. Barnhart, 535 U.S. 789, 808-09 (2002)
(endorsing the 42 U.S.C. § 406(b) fee determination approach established by the Second Circuit
in Wells stating "Section 406(b) calls for court review of such arrangements as an independent
check, to assure that they yield reasonable results in particular cases"). In determining the
reasonableness of a fee the Supreme Court stated "[c]ourts that approach fee determinations by
looking first to the contingent-fee agreement, then testing it for reasonableness, have
appropriately reduced the attorney's recovery based on the character of the representation and the
results the representative achieved." Gisbrecht, 535 U.S. at 808.
"While the court need not make mathematical calculations, it should, of course, determine
whether the contingency percentage is within the 25% cap; it should also consider whether there
has been fraud or overreaching in making the agreement, and whether the requested amount is so
large as to be a windfall to the attorney." Wells, 907 F.2d at 372 (citations omitted).
In three separate award notices dated July 31, 2016, the SSA advised Barbara Cole's
surviving family members—Alexa Cole, Christopher Cole, and William Cole—that they would
be receiving withheld benefits for April 2011 through August 2014 for a total amount of
$78,985.00. See Dkt. No. 13-3 at 25-34. The notices also stated that the SSA withheld a total of
$19,746.25 from her past-due benefits, twenty-five percent of the total past-due benefits, for
possible attorney's fee claims. See id. Plaintiff's counsel submitted a fee petition to the
administrative law judge requesting a fee of $9,000.00 for work done at the administrative level.
See id. at 36. Plaintiff's counsel now requests that this Court award attorney's fees in the amount
of $10,746.25, which represents the remainder of the twenty-five percent of past-due benefits
withheld by the SSA. See Dkt. No. 13-2 at 2. Plaintiff's counsel provides an itemized summary
documenting 16.7 hours of attorney work, which amounts to a de facto hourly rate of $643.49.
See Dkt. No. 13-1 at 3-4.
When assessing the reasonableness of attorney's fees, "the Supreme Court rejected the use
of the 'lodestar' method (i.e., the number of hours reasonably expended times a reasonable hourly
rate) to awarding fees under § 406(b) where the plaintiff and her attorney have entered into a
contingent-fee agreement." Lapatra v. Astrue, 530 F. Supp. 2d 453, 455 (W.D.N.Y. 2008) (citing
Gisbrecht, 535 U.S. at 808). Instead, "[d]eference should be given . . . to the freely negotiated
expression both of a claimant's willingness to pay more than a particular hourly rate . . . and of an
attorney's willingness to take the case despite the risk of nonpayment." Joslyn v. Barnhart, 389 F.
Supp. 2d 454, 456 (W.D.N.Y. 2005) (quoting Wells, 907 F.2d at 371).
In the present matter "the Commissioner has no objections to the Section 406(b) fee
motion" and therefore does not specifically object to the reasonableness of the 16.7 hours of
attorney work allegedly expended by Plaintiff's counsel or the de facto hourly rate of $643.49.
See Dkt. No. 15 at 3. The supporting documentation submitted by counsel itemizing his time
spent is sufficient for this Court to find his expenditure of hours and the hourly rate claimed to be
reasonable given the nature of this litigation. See Torres v. Colvin, No. 11-CV-5309, 2014 WL
909765, *4 (S.D.N.Y. Mar. 6, 2014) ("[A] substantial body of caselaw has awarded rates that
approach, if they do not exceed, $1,000."). The contingent rate of twenty-five percent of the pastdue benefits was agreed upon by Plaintiff and Plaintiff's counsel. See Dkt. No. 13-3 at 38.
Morever, as the Commissioner notes, the total amount requested does not does not exceed twentyfive percent of the total past-due benefits to Plaintiff. See Dkt. No. 15 at 2.
Accordingly, the Court awards attorney's fees in the amount of $10,746.25.
Based upon the foregoing, the Court hereby ORDERS that Plaintiff's motion for
attorney's fees (Dkt. No. 18) is GRANTED in the amount of $10,746.25; and the Court further
ORDERS that the check shall be made payable to Plaintiff's counsel and that the check
shall be mailed to Plaintiff's counsel; and the Court further
ORDERS that the Clerk of the Court shall serve the parties with a copy of this Decision
and Order in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: June 8, 2017
Albany, New York
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