Doldan v. Colvin

Filing 30

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,
Plaintiff,
-vs-

No. 1:13-CV-00863 (MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented

by

counsel,

Nicholas

R.

Doldan

(“plaintiff”)

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
his

attorney,

whereby

plaintiff

agreed

to

pay

his

attorney

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
states no

objections

to

the

instant motion.

For

the

reasons

discussed below, plaintiff’s counsel’s motion is granted.
II.

Discussion
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
affirmative

judicial

finding

that

the

fee

allowed

is

‘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

1

Plaintiff’s original motion (doc. 25) incorrectly stated that the SSA
withheld $16,602.50. The amended motion (doc. 27) corrects that error.

2

that they yield reasonable results in particular cases.”) (footnote
omitted);

id.

at

808-09.

“Within

the

25

percent

boundary”

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).
The

Court

begins

its

reasonableness

analysis

with

the

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
(citing

Gisbrecht,

535

U.S.

at

803

(noting

that

“[c]haracteristically . . ., attorneys and clients enter into
contingent-fee

agreements

specifying

that

the

fee

will

be

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
benefits.
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
attorney’s

fees.

Plaintiff’s

counsel

accordingly

requests

$15,602.50. Based on his itemization of hours for work performed

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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.
2005)

(finding

award

equivalent

to

$891.61

per

hour

not

a

windfall).
In

sum,

reasonable.

the

The

Court

Court

finds

directs

that
the

plaintiff’s

Commissioner

request
to

remit

is
to

plaintiff’s counsel the requested $15,602.50 fee award, which award
will be offset by the $7,000.00 award of EAJA fees.
III. Conclusion
For the foregoing reasons, plaintiff’s motion for attorney’s
fees

is

granted.

The

Commissioner

is

directed

to

remit

to

plaintiff’s counsel $15,602.50. Upon receipt of the fee award,
counsel

is

directed

that

he

refund

to

plaintiff

the

sum

$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
Dated:

April 8, 2017
Rochester, New York.
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