Mayfield v. Colvin

Filing 23

DECISION AND ORDER: Consistent with the findings herein, Plaintiff's 17 Motion for Attorney Fees under 42 U.S.C. § 406 (b)(1)(A) is granted. SO ORDERED. Signed by Hon. Richard J. Arcara on 11/22/24. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ANDREW C.M.,
Plaintiff,
v.

DECISION AND ORDER
15-CV-760-A

MARTIN O’MALLEY, 1
Commissioner of Social Security,
Defendant.
Plaintiff Andrew C.M., as the prevailing party in this social security benefits
action, has filed a Motion for Attorney Fees, under 42 U.S.C. § 406 (b)(1)(A). Dkt.
#17. Defendant neither supports nor opposes counsel's request. Dkt. #22.
By statute, this Court may determine and award a reasonable fee not to
exceed 25% of total past-due benefits to an attorney who secures a favorable
judgment for a claimant in a social security case in federal court. See 42 U.S.C. §
406 (b)(1)(A); Gisbrecht v. Barnhart, 535 U.S. 789, 794 (Ҥ 406(a) governs fees for
representation in administrative proceedings; § 406(b) controls fees for
representation in court.”). This fee authority “does not displace contingent-fee
agreements” but rather “calls for court review of such arrangements as an
independent check, to assure that they yield reasonable results in particular cases.”
Gisbrecht, 535 U.S. at 807. Since 406(b) is not entirely self-explanatory, the Second
Martin O’Malley is now the Commissioner of Social Security. He is substituted
pursuant to Fed. R. Civ. P. 25(d). The Clerk is directed to amend the caption to comply
with this substitution.
1

Circuit, in “[s]eeking to provide…guidance” on the issue has held “that where there is
a contingency fee agreement in a successful social security case, the district court's
determination of a reasonable fee under § 406(b) must begin with the agreement,
and the district court may reduce the amount called for by the contingency
agreement only when it finds the amount to be unreasonable.” Fields v. Kijakazi, 24
F.4th 845, 852–53 (2d Cir. 2022) (quotations and citations omitted). This review is
subject to “one boundary line: Agreements are unenforceable to the extent that they
provide for fees exceeding 25 percent of the past-due benefits.” Gisbrecht, 535 U.S.
at 807. “Within the 25 percent boundary ... the attorney for the successful claimant
must show that the fee sought is reasonable for the services rendered.” Id.
Here, Plaintiff entered into a fee agreement with his attorney whereby Plaintiff
agreed to pay attorney fees equivalent to 25% of the past due benefits awarded to
Plaintiff or his family. Dkt. #17-2. After this lawsuit was commenced in federal court,
Plaintiff received a Notice of Award in which he was advised that it was determined
that he was entitled to past due benefits. 2 Dkt. #18, p. 2 (“You will soon receive a
lump sum payment in the amount of $126,657.70 which is the amount that is due to
you from your past-due benefits.”) Plaintiff’s counsel claims that he is entitled to
$43,918.75 in attorney’s fees. See, Dkt. #17-1, p.1. Such amount appears to be
based upon the amount of attorney’s fees which the Plaintiff’s Notice of Award
indicates, in a section entitled “Information About Representative Fees” were

Plaintiff’s counsel’s original motion for attorney’s fees included a Notice of Award from
the SSA pertaining to a different individual. See, Dkt. #17-4. Subsequently, Plaintiff’s
counsel separately filed Plaintiff’s Notice of Award. Dkt. #18.
2

2

withheld from Plaintiff’s past due benefits. See, Dkt. #18, p.4 (“We usually withhold
25 percent of past due benefits in order to pay the approved representative's fee.
We withheld $43,918.25 from your past due benefits in case we need to pay your
representative.”). However, a prior section of Plaintiff’s Notice of Award entitled
“What We Will Pay” indicates that “-$41,330.00” was the “Amount Withheld for
Attorney’s Fees.” Dkt. #18, p.2. Based upon the foregoing, if the greater attorney’s
fees withholding (i.e., $43,918.25, the amount sought by Plaintiff’s counsel) were to
be awarded, such amount would be in excess of the 25% statutory limit.3 Since the
attorney “bears the burden of persuasion that the statutory requirement has been
satisfied,” Gisbrecht, 535 U.S. at 807 n.17, and since Defendant’s failure to oppose
the motion is “not dispositive,” Mix v. Comm'r of Soc. Sec., No. 6:14-CV-06219
(MAT), 2017 WL 2222247, at *2 (W.D.N.Y. May 22, 2017), this Court determines for
purposes of this motion that the amount of attorney’s fees sought by Plaintiff’s
attorney is appropriately limited to the lesser amount of attorney’s fees withheld as
reflected in the Notice of Award, i.e., $41,330.00. Unlike the greater amount
($43,918.25) sought by Plaintiff’s counsel in his motion papers, see, Dkt. #17, such
lesser amount falls within the 25% statutory limit. 4

3 If greater amount of attorney’s fees withheld (i.e., $43,918.25) reflected in the Notice of

Award is added to the amount to which Plaintiff was awarded in past due benefits (i.e.,
$126,657.70) to determine the total amount of Plaintiff’s award (i.e., $170,575.95), then
the amount such attorney’s fees would be in excess of $42,643.99, which would, in
such instance, represent 25% of the Plaintiff’s total award.
4 If the lesser amount of attorney’s fees withheld (i.e., $41,330.00) reflected in the

Notice of Award is added to the amount to which Plaintiff was entitled in past due
benefits (i.e., $126,657.70) to determine the total amount of Plaintiff’s award (i.e.,
3

Yet, the inquiry does not end there as this Court must still determine whether
the such amount is reasonable, and to do that, the Courts have looked to “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 v. Sullivan,
907 F.2d 367, 372 (2d Cir. 1990).
Having thoroughly reviewed counsel's fee request and supporting
documentation, this Court finds that the requested fee is reasonable based on
counsel's experience in social security law, the character of the representation
provided, and the favorable results achieved. See Gisbrecht, 535 U.S. at 808.
Moreover, there is no indication that this fee is a windfall. Fields v. Kijakazi, 24 F.4th
at 849. Timesheets submitted by Plaintiff’s counsel reflect that counsel spent 29.6
hours working on this case. Dkt. #17-7. While the fee here constitutes an hourly rate
of roughly $1,390 per hour, which is high for Western New York, the precedent cited
in counsel's fee application and the incentive necessary for counsel to take
contingency-fee cases weigh in favor of approving the fee requested. See Gisbrecht,
535 U.S. at 808 (noting that “a record of the hours spent representing the claimant”
can be used by the court “as an aid to [its] assessment of the reasonableness of the
fee yielded by the fee agreement”); see also Fields, 24 F.4th at 854 (“[E]ven a
relatively high hourly rate may be perfectly reasonable, and not a windfall, in the
context of any given case.”). Moreover, the hourly rate being awarded is less than

$167,987.70), then the amount such attorney’s fees would be less than $41,996.93,
which would, in such instance, represent 25% of the Plaintiff’s total award.
4

that which have been approved by other Judges in this District. See e.g., Kimberly
P. v. Comm'r of Soc. Sec., No. 18-CV-1074-LJV, 2024 WL 4581296, at *1 (W.D.N.Y.
Oct. 25, 2024) (approving an hourly rate of over $1,500); John T. v. Comm'r of Soc.
Sec., No. 1:21-CV-00297 EAW, 2024 WL 3897031, at *2 (W.D.N.Y. Aug. 22,
2024)(approving requested fee would result in a de facto hourly rate of $1,526);
James C. v. Comm'r of Soc. Sec., No. 1:20-CV-01008-EAW, 2023 WL 8014383, at
*3 (W.D.N.Y. Nov. 20, 2023) (granting de facto hourly rate of $2,047.00 based on
counsel's quality and efficiency and collecting cases).
Finally, this Court recognizes, “accepting reasonable contingency agreements
as the basis for a § 406(b) social security fee provides a critical incentive for able
attorneys to practice in the social security field and increases the likelihood that a
claimant can find an attorney sufficiently committed and skilled to litigate
successfully against the government.” Wells, 907 F.2d at 372.
For these reasons, Plaintiff's counsel's motion is granted in part and counsel
is awarded $41,330 fee request is therefore granted under 42 U.S.C. § 406
(b)(1)(A).
By stipulation approved and ordered on June 29, 2016, this Court previously
awarded Plaintiff's counsel $5,300.00 in fees under the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412 (d). (Dkt. #15). Because the fee granted herein exceeds
the EAJA fee, Plaintiff's counsel must refund the $5,300.00 EAJA fee to Plaintiff. See
Wells v. Bowen, 855 F.2d 37, 42 (2d Cir. 1988). Accordingly, it is hereby

5

ORDERED, that counsel's Motion for Attorney Fees is GRANTED IN PART,
and Plaintiff’s counsel is awarded attorney fees in the amount of $41,300.00 under
42 U.S.C. § 406(b)(1)(A) (Dkt. #17) . The fees are to be paid out of Plaintiff's pastdue benefits in accordance with agency policy; and it is further
ORDERED, that Plaintiff's counsel is directed to refund to Plaintiff the
$5,300.00 EAJA award within 14 days of receiving the § 406(b) award.
IT IS SO ORDERED.
s/Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: November 22, 2024
Buffalo, New York

6