Doldan v. Colvin
DECISION AND ORDER granting 25 Motion for Attorney Fees; granting 27 Motion for Attorney Fees consistent with this Decision and Order. Signed by Hon. Michael A. Telesca on 4/8/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
NICHOLAS R. DOLDAN,
No. 1:13-CV-00863 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
brought this action pursuant to Title XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the
Commissioner of Social Security (“the Commissioner”) denying his
application for supplemental security income (“SSI”). On April 1,
2016, this Court reversed that decision and remanded the case
solely for the payment and calculation of benefits. Doc. 20. On
February 27, 2017, the Social Security Administration (“SSA”)
issued a Notice of Award stating that plaintiff was entitled to
$62,410.00 in past due benefits. Doc. 25-5. Of that past due
amount, $15,602.50 was withheld for attorney’s fees. Id.
Plaintiff’s counsel, Kenneth Hiller, Esq., has now moved for
attorney’s fees pursuant to 42 U.S.C. § 406(b), asking that the
Court approve the contingent fee arrangement between plaintiff and
25 percent of any past-due benefits payable to him, for legal
services performed in this proceeding. Docs. 25, 27.1 Plaintiff’s
counsel requests a fee award of $15,602.50 under Section 406(b),
with the understanding that he will refund the fee previously
awarded under the Equal Access to Justice Act (“EAJA”), $7,000.00,
upon receipt of the award.
The Commissioner filed a response dated April 3, 2017, which
discussed below, plaintiff’s counsel’s motion is granted.
Section 406(b) provides in relevant part that
[w]henever a court renders a judgment favorable to a
claimant under this title 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 such judgment . . .
42 U.S.C. § 406(b)(1)(A). “The Commissioner’s failure to oppose
this motion is not dispositive, as ‘[S]ection 406(b) requires an
‘reasonable[.]’” Ewald v. Commissioner of Social Sec., 2008 WL
4104458,*1 n.1 (E.D.N.Y. Sept. 3, 2008) (quoting Gisbrecht v.
Barnhart, 535 U.S. 789, 807 n.17 (2002)); see also Gisbrecht, 535
U.S. at 807 (“[Section] 406(b) calls for court review of such
[contingent-fee] arrangements as an independent check, to assure
Plaintiff’s original motion (doc. 25) incorrectly stated that the SSA
withheld $16,602.50. The amended motion (doc. 27) corrects that error.
that they yield reasonable results in particular cases.”) (footnote
established by Congress in § 406(b)(1)(A), “the attorney for the
successful claimant must show that the fee sought is reasonable for
the services rendered.” Id. at 807 (footnote omitted).
contingency agreement itself, which is unambiguous. The 25 percent
fee for services provided by plaintiff’s attorney does not exceed
the statutory cap; moreover, 25 percent is a standard contingency
fee for a Social Security case. Ewald, 2008 WL 4104458, at *2
“[c]haracteristically . . ., attorneys and clients enter into
25 percent of any past-due benefits” (internal quotation marks and
citation omitted)). There is no suggestion in the record that the
fee agreement was the product of fraud or overreaching. Counsel
provided effective representation to plaintiff, securing a reversal
of the Commissioner’s adverse decision and the immediate award of
Turning next to the amount of the award requested, counsel
asserts that plaintiff’s past-due benefits totaled $62,410.00, and
that, from this amount, $15,602.50 was withheld for the payment of
$15,602.50. Based on his itemization of hours for work performed
before the District Court at 39.7 hours, this would result in a
de facto hourly rate of $418.20. This rate does not represent a
“windfall” to counsel, as the Commissioner acknowledges. See, e.g.,
Trupia v. Astrue, 2008 WL 858994, *3-*4 (E.D.N.Y. Mar. 27, 2008)
(finding award equivalent to $714.09 per hour not a windfall);
Blizzard v. Commissioner of Soc. Sec., 496 F. Supp.2d 320, 323-24
(S.D.N.Y. 2007) (finding award equivalent to $705.00 per hour not
a windfall); Joslyn v. Barnhart, 389 F. Supp.2d 454, 456 (W.D.N.Y.
plaintiff’s counsel the requested $15,602.50 fee award, which award
will be offset by the $7,000.00 award of EAJA fees.
For the foregoing reasons, plaintiff’s motion for attorney’s
plaintiff’s counsel $15,602.50. Upon receipt of the fee award,
$7,000.00, the amount previously awarded as EAJA fees.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
April 8, 2017
Rochester, New York.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?