McCracken v. Astrue

Filing 20

DECISION AND ORDER granting 18 Motion for Attorney Fees: The Court hereby ORDERS that Plaintiff's motion for attorney's fees and costs (Dkt. No. 18) is GRANTED in the amount of five thousand one hundred ninety-seven dollars and twenty seven cents ($5,197.27) for attorney's fees; 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 1/27/2017. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
LAURA MCCRACKEN,
Plaintiff,
vs.

8:12-cv-00193
(MAD)

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

INSLER & HERMANN, LLP
560 White Plains Road
Tarrytown, New York 10591
Attorneys for Plaintiff

LEWIS B. INSLER, ESQ.

SOCIAL SECURITY ADMINISTRATION
Office of the General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
Attorney for Defendant

BENIL ABRAHAM, ESQ.

Mae A. D'Agostino, U.S. District Judge:
DECISION AND ORDER
I. INTRODUCTION
On January 1, 2012, Plaintiff Laura McCracken commenced suit pursuant to 42 U.S.C. §
405(g) seeking a review of the Commissioner of Social Security's decision to deny her application
for Disability Insurance Benefits ("DIB"). See Dkt. No. 1 at 1-2. The parties' familiarity with the
background and procedural history of this case is assumed based upon this Court's previous
Memorandum-Decision and Order dated May 13, 2014. See Dkt. No. 16. Presently before the

Court is Plaintiff's motion for an award of attorney's fees under 42 U.S.C. § 406(b). See Dkt. No.
18-1 at 3. The Commissioner has not opposed the motion.
II. DISCUSSION
A.

Standard of Review
42 U.S.C. § 406(b) 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 . . .

42 U.S.C. § 406(b)(1)(A). Thus, 42 U.S.C. § 406(b) requires the plaintiff's attorneys to 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) (citations
omitted); see also Gisbrecht v. Barnhart, 535 U.S. 789, 808-809 (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 (citations omitted).
"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).
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B.

Analysis
In an award notice dated July 1, 2015, the Social Security Administration ("SSA") advised

Plaintiff that she was awarded monthly disability benefits with a disability onset date of
December 20, 2007. See Dkt. No. 18-4 at 1. The notice also stated that SSA withheld $15,680.23
from her past-due benefits, 25 percent of the total past due benefits, for possible attorney's fee
claims under 42 U.S.C. § 406(b). See id. at 2. In a May 15, 2016 letter, SSA advised Plaintiff
that it had approved $9,680.23 to pay Plaintiff's attorney for work done at the administrative level
and that the agency would continue to withhold $5,197.27 for potential payment of counsel's
federal court attorney's fees. See Dkt. No. 18-5 at 1.
Plaintiff requests this Court award $5,197.27 for 20.36 hours of attorney work, which
represents a de facto hourly rate of $255.27. See Dkt. No. 18-1 at 2-3. 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.'" Id. (quoting Joslyn v. Barnhart, 389 F. Supp. 2d 454, 456
(W.D.N.Y. 2005)) (other quotation omitted).
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 20.36 hours of
attorney work allegedly expended by Plaintiff's counsel. Dkt. No. 19 at 2. The supporting
documentation submitted by counsel itemizing his time spent is sufficient for this Court to find
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his expenditure of hours and the hourly rate claim to be reasonable given the nature of this
litigation. See id. at 1-2; Dkt. No. 18-6 at 1. The contingent rate of 25% of the past due benefits
was agreed upon by Plaintiff and Plaintiff's counsel in a document titled federal court retainer
agreement. See Dkt. No. 18-2 at 1. Morever, as the Commissioner notes, the total amount
requested does not clearly constitute a windfall and does not exceed 25 percent of the total past
due benefits to Plaintiff.
Accordingly, the Court awards attorney's fees in the amount of $5,197.27.
III. CONCLUSION
Based upon the foregoing, the Court hereby
ORDERS that Plaintiff's motion for attorney's fees and costs (Dkt. No. 18) is GRANTED
in the amount of five thousand one hundred ninety-seven dollars and twenty seven cents
($5,197.27) for attorney's fees; 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: January 27, 2017
Albany, New York

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