Reynolds v. Commissioner of Social Security
Filing
19
DECISION & ORDER: Petitioner Howard D. Olinsky, Esq., is awarded attorney's fees of $10,975.50 pursuant to 42 U.S.C. § 406(b)(1) to be paid out of Plaintiff's past-due benefits in accordance with agency policy. Upon receipt of payment, Mr. Olinsky shall refund the EAJA award of $1,024.86 to Plaintiff. Signed by Chief Judge Brenda K. Sannes on 10/24/2024. (nmk)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________________
ERNEST R.,
v.
Plaintiff,
5:22-cv-00912
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
________________________________________________
Brenda K. Sannes,
Chief United States District Judge 1
DECISION & ORDER
Petitioner Howard D. Olinsky, Esq. (“Petitioner”), attorney for Plaintiff Ernest R.
(“Plaintiff”), 2 moves this Court pursuant to Social Security Act § 206(b)(1) and 42 U.S.C.
§ 406(b)(1) for an award of attorney’s fees based on the contingency fee agreement
between Plaintiff and Petitioner. Dkt. No 16-1. Petitioner seeks attorney’s fees in the
amount of $10,975.50 under 42 U.S.C. § 406(b), which is 25% of the total of Plaintiff’s
past-due benefits. See id. Defendant Commissioner of Social Security “neither supports
nor opposes counsel’s request for attorney’s fees in the amount of $10,975.50, under 42
U.S.C. § 406(b).” Dkt. No. 17. Rather, “[t]he Commissioner requests that the Court
order indicate the amount of any § 406(b) award it authorizes but decline to include
language directing that the Commissioner ‘pay’ the award. Alternatively, the
1 This case was originally assigned to the Hon. Thomas J McAvoy, and has been reassigned to the
undersigned.
2 In accordance with guidance from the Committee on Court Administration and Case Management of the
Judicial Conference of the United States, which was adopted by the Northern District of New York in 2018
to better protect personal and medical information of non-governmental parties, this Decision and Order
will identify Plaintiff by first name and last initial.
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Commissioner requests that the Court specifically indicate that any amount it authorizes
in § 406(b) fees is to be paid out of Plaintiff’s past-due benefits in accordance with
agency policy.” Id.
Discussion
Petitioner represented Plaintiff in a civil action before this Court for judicial review
of the Commissioner’s decision denying Plaintiff’s application for Supplemental Security
Income. Olinsky Affirm., Dkt. No. 16-1, ¶ 1. On November 23, 2022, the Court
remanded the matter to the Social Security Administration for further proceedings. Dkt.
No. 11. This remand resulted in a finding establishing Plaintiff is disabled and therefore
eligible for benefits. Olinsky Affirm., ¶ 9. Total past-due benefits for Plaintiff were
$43,902.00 based on the February 27, 2024 SSI Notice of Award for August 2019
through February 2024, received by mail on March 4, 2024. Id. ¶ 4.
Petitioner and Plaintiff previously entered into a contingency fee agreement
which stated that the attorney shall charge and receive as the fee an amount equal to
twenty-five percent of the past due benefits awarded to Plaintiff and his family if he won
his case. Id. ¶ 3. Petitioner’s fee agreement was not approved by the Social Security
Administration. Id. ¶ 6.
Petitioner timely moved this Court for attorney’s fees under Social Security Act §
206(b)(1) and 42 U.S.C. § 406(b)(1). Id. ¶ 4. Under 42 U.S.C. § 406(b), this Court may
award “a reasonable fee not in excess of 25 percent of… past-due benefits” awarded to
the claimant. 42 U.S.C. § 406(b)(1)(A). One-fourth of the past-due benefits for Plaintiff
is $10,975.50.
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On March 15, 2023, an order awarding $1,024.86 in attorney’s fees pursuant to
the Equal Access to Justice Act (“EAJA”), 28 U.S.C. § 2412(d) was issued. Dkt. No. 15.
Petitioner recognizes that should the Court award § 406(b) fees in excess of the EAJA
award, Plaintiff must be refunded the approved attorney fees in the amount of $1,024.86
awarded under the EAJA. Olinsky Affirm., ¶ 8.
Petitioner indicates that he has not represented Plaintiff in any other claim aside
from that under the Social Security Act regarding his disability. Id. ¶ 9. Petitioner
represents that Plaintiff’s attorneys and paralegals logged 7.2 hours representing
Plaintiff before this court. Id. ¶ 10. The effective hourly attorney rate is $1,524.38. Id.
Petitioner contends that this hourly rate is reasonable under prevailing law. Id. (citing
Fields v. Kijakazi, 24 F.4th 845, 853 (2d Cir. 2022)). Petitioner further contends that
given the contingent nature of the representation, the contract between Plaintiff and his
attorney, and the absence of any reasons the award would be unjust, 3 the requested fee
is not a windfall. Id. ¶ 12. The Court agrees with this last proposition.
Conclusion
Accordingly, for the reasons stated above, and given the absence of objections to
the requested fee by the Commissioner, Petitioner Howard D. Olinsky, Esq., is awarded
attorney’s fees of $10,975.50 pursuant to 42 U.S.C. § 406(b)(1) to be paid out of
Plaintiff’s past-due benefits in accordance with agency policy. Upon receipt of payment,
Petitioner represents that “Plaintiff will receive a copy of Petitioner’s motion and memorandum regarding
the request for attorney’s fees under Social Security Act § 206(b)(1) and 42 U.S.C. § 406(b)(1).” Olinsky
Affirm., ¶ 13.
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3
Mr. Olinsky shall refund the EAJA award of $1,024.86 to Plaintiff.
IT IS SO ORDERED.
Dated: October 24, 2024
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